

BEFORE THE 


House of Representatives 


65th Congress, 1st Session 


Election Committee, No— 


JAMES WICKERSHAM, 

Contestant 


Alaska Contest 


CHARLES A. SULZER, 

Contestee 


BRIEF AND ARGUMENT FOR 
CONTESTANT 


JAMES WICKERSHAM, 


In propria persona. 


/ 


OP THB SUBWARTH CO., WARHINOTON 













, l\ A \i(o7^ 

INDEX TO CONTENTS. 

STATEMENT OF PACTS. 

(1) The Candidates and the Result. 3 

(2) Suit of Sulzer v. The Canvassing Board. 3 

(3) Notice of Contest of Election, grounds stated.. 7 

(4) Sulzer’s Answer and Cross Petition... 9 

(5) Reply and Answer of Contestant. 10 

POINTS AND AUTHORITIES. 

1. UNITED STATES ELECTION LAWS. 

(1) United States Election Laws in States.... 10 

(2) The power of Congress to govern a Territory. 12 

(3) United States Election Laws in a Territory. 15 

(4) United States Election Laws in Alaska. 16 

(5) Territorial Amendments to Organic Acts. 20 

2. SUIT OF SULZER v. THE CANVASSING BOARD. 

(1) A suit to overcome Executive honesty. 24 

(2) Collusion and judicial partisanship..;. 26 

(3) Contestant not made a party. 29 

(4) A discjualified judge . 33 

(5) No mandamus against a Governor. 35 

(6) Relator’s cause of Action . 38 

(7) An Arbitrary Decision. 41 

(8) Mandamus against the Board. 44 

(9) Another plain remedy at Inw. 52 

(10) What Judge Jennings decided, and why. 55 

a. Point No. 1.—Vault precinct rejected. 55 

h. Point No. 2.—Five other precincts rejected. 59 

(11) 37 non-resident soldiers voted for Sulzer. 66 

























STATEMENT OF FACTS 


(1) THE CANDIDATES AND THE RESULT. 

There were three candidates for Delegate from Alaska to the 65th 
Congress at the regular election held in that territory on November 
7, 1916. Lena Morrow Lewis received a total of 1346 votes; Charles 
A. Sulzer, the contestee herein, received a total of 6459 votes; and 
James Wickersham, the contestant, received a total of 6490 votes at 
said election. Within the time prescribed by law after the election the 
Territorial Canvassing Board met in the city of Juneau, Alaska, and 
proceeded from day to day to canvass and compile the returns of the 
said election. 

That the said Canvassing Board, on the 1st day of March, 1917, com¬ 
pleted its canvass and compilation of the returns of the election and 
that the official tally sheets showed the following result of the vote 
for Delegate to Congress from Alaska: Lena Morrow Lewis, 1346 votes; 
Charles A. Sulzer, 6459 votes, and James Wickersham, 6490 votes. 
That upon the completion of the canvass and compilation of the re¬ 
turns by the Board said Board voted to issue certificates of election to 
the candidates to the various offices who had received the greatest num¬ 
ber of votes at said election as shown upon the official tally sheets. 

(2) SUIT OP SULZER V. THE CANVASSING BOARD. 

After the Canvassing Board, on March 1, 1917, had completed its 
canvass and compilation and had publicly and officially declared this 
contestant elected and had prepared his certificate of election for is¬ 
suance, but before it was signed and delivered to him, Mr. Sulzer in¬ 
stituted a suit before the Judge of the District Court for the District 
of Alaska, Division No. 1, at Juneau, Alaska, praying for the issuance 
of a mandamus to compel the Canvassing Board to reject the returns 
from seven precincts, which added to the remainder, gave contestant 
a majority of all the votes cast at said election, but if rejected and 
thrown out left the contestee herein, Sulzer, with a majority. Sulzer’s 
petition also demanded that the Canvassing Board be compelled to 
issue the certificate of election to him. No charge of fraud or other 
wrong doing was made against contestant, the electors, the election 
officers, or the Canvassing Board, but only the single allegation that 
the election judges had not made and sent in with the returns, from 


the precincts named, a certificate showing why the Congressional form 
of ballots had been used in those precincts instead of the new form 
prescribed by the Territorial Legislature. 

The Canvassing Board for the Territory of Alaska was then com¬ 
posed of the Governor of Alaska, Hon. J. F. A. Strong, the Surveyor 
General of Alaska, Hon. Charles E. Davidson, and the Collector of 
Customs, Hon. John F. Pugh, all of whom are Democrats, appointed by 
President Wilson and all political friends and supporters of Sulzer; 
all the election officers in Alaska were appointed by the precinct Com¬ 
missioners, who were, in turn, appointed by the four Democratic dis¬ 
trict judges, who were, also in turn, appointed by President Wilson 
and confirmed by the United States Senate. The whole machinery in 
Alaska at that election was then and is now Democratic from top to 
bottom. 

Upon the filing of the Sulzer petition, Judge Jennings, before whom 
it was heard, immediately and on the same day, issued an alternative 
writ of mandamus commanding the Canvassing Board to— 

“Reject and do not count the returns and the votes received and 


transmitted to you from the following precincts, 

to-wit 

Choggiung,. 

.for 

James Wickersham 

25 


for 

Charles A. Sulzer 

3 

Deering,. 

.for 

James Wickersham 

10 


for 

Charles A. Sulzer 

6 

Nizina,. 

.for 

James Wickersham 

7 


for 

Charles A. Sulzer 

2 

Nushagak,. 

.for 

James Wickersham 

10 


for 

Charles A. Sulzer 

3 

Utica,.. 

.for 

James Wickersham 

13 


for 

Charles A. Sulzer 

4 

Bonnifield,. 

.for 

James Wickersham 

3 


for 

Charles A. Sulzer 

1 

Vault,. 

.for 

James Wickersham 

8 


for 

Charles A. Sulzer 

2 


and that you issue a certificate of election of Charles A. Sulzer, 
the relator herein, certifying that he has been duly elected as a 
Delegate to Congress for the Territory of Alaska, at the election 
held on November 7, 1916.” 

or that the Board show cause for its omission to do so on ]\Iarch 3d be¬ 
fore the said judge, 

“And you are hereby restrained from counting the votes or 
receiving the returns from any one or more of the precincts above 
named until the further order of this court.” 










5 


Robert W. Jennings, the judge of the court before whom said cause 
was heard, was a candidate for Delegate to Congress from Alaska at 
the election held in Alaska on August 13, 1912, against this contestant, 
and was overwhelmingly defeated; he was fourth in the list and a poor 
finish at that; that John F. Pugh, the Collector of Customs in Alaska, 
and a member of the said Canvassing Board, is a brother-in-law of the 
said Judge Jennings, and both of said officials are partisan opponents 
of and very unfriendly to this contestant. That after the service of the 
said alternative writ of mandamus upon him, John F. Pugh appeared 
in court and filed his answer admitting all the allegations of the peti¬ 
tion and writ and announced his readiness to reject all the ballots 
mentioned and to issue the certificate to Sulzer, but being only one of 
the said Canvassing Board of three he alleged he was powerless in the 
premises. 

Thereafter and on IMarch 6th, Governor Strong and Surveyor General 
Davidson, a majority of said Canvassing Board, made their answer and 
filed it in court before Judge Jennings, in Avhich, among other things, 
they alleged: 

“1. That the Territorial Canvassing Board did, on the 1st day 
of March, 1917, complete its canvass and compilation of the re¬ 
turns of the general election held in the Territory of Alaska on the 
7th day of November, 1916, and that the official tally sheets made 
up by said Board were duly totalled and checked, and that the 
same showed the following result of the vote for the several candi¬ 
dates for Delegate to Congress from Alaska: Lena Morrow Lewis, 
1346 votes; Charles A. Sulzer, 6459 votes; and James Wickersham, 
6490 votes. 

“2. That upon the completion of the canvass and compilation 
of the returns and the totalling and checking of the tally sheets of 
the Board said Board voted to issue certificates of election to the 
candidates for the various offices who had received the greatest 
number of votes in the said general election aforesaid as shown 
by the official tally sheets of the Board and that in pursuance of 
such action by the Canvassing Board and prior to the service of the 
alternative writ of mandamus upon the members thereof, a certifi¬ 
cate of election was prepared by said Board for issuance to James 
Wickersham as Delegate to Congress from Alaska for the term 
beginning March 5, 1917; but that before said certificate had been 
signed and issued by the Board the members thereof were served 
with the writ of mandamus herein and no further action has been 
taken looking to the issuance of said certificate of election pending 
the further order of the court herein.” 

The Board of Canvassers also alleged that the returns from Choggiung, 
Deering, Utica, Nushagak, and Bonnifield precincts showed that the 


G 


Congressional form of ballots bad been used in each of said precincts 
and that no certificate accompanied the returns from each of said pre¬ 
cincts showing why such ballots had been used. But the answer also 
alleged that in the precincts of Deering and Utica the Board had been 
notified by telegraph from the Clerk of the United States District Court 
at Nome, in which division the precincts of Deering and Utica w^ere 
situated, that the proof was then in his office and was being forwarded, 
made by the election officers in those precincts, showing why the Con¬ 
gressional form of ballots had been used instead of the form provided 
by the Territorial Legislature. The fact is, and the proof has subse¬ 
quently been made, that in the precincts rejected by the alternative 
writ and finally by the peremptory writ, the territorial form of ballots 
did not reach the election precincts until after the election was over, 
and could not therefore be used. The electors used a form of ballot 
provided by section 9 of the Act of Congress of INlay 7, 1906, 34 Stat. L. 
169 (172), which form is also provided for and made valid by the Act 
of the Territorial Legislature of April 27, 1915. 

That a demurrer ore tenus was interposed by the attorneys for Sulzer 
to the answer of the Canvassing Board and argued before Judge Jen¬ 
nings, and thereafter and on March 20th the judge rendered a long 
opinion upon the law in which he held that the precincts mentioned 
should be rejected for the want of the certificate mentioned; thereafter 
a private citizen, Emery Valentine, a resident of Juneau, xUaska, filed 
with the Canvassing Board a protest against counting the votes from 
a large number of other precincts, then pending before the said Canvass¬ 
ing Board, for the same defects pointed out by Judge Jennings in his 
opinion as being fatal to the validity of the returns from the precincts 
rejected by him; that the Canvassing Board on said 21st day of March, 
1917, filed the said protest with a statement, in the office of the Clerk 
of the District Court, and thereupon the clerk of that court brought 
the protest to the attention of the judge and upon the 22d day of 
March, 1917, Judge Jennings wrote a letter to the Governor and Sur¬ 
veyor General, a majority of the said Canvassing Board, in relation 
thereto, but nothing was done by the court looking to a consideration 
of any of the defects in the said record except those mentioned in the 
Sulzer petition. 

That thereafter and on the 23rd day of March, 1917, and upon the 
pleadings in the cause, and without having heard any evidence whatever, 
Judge Jennings signed and issued a peremptory writ of mandamus, 
which contained the petition of the said Charles A. Sulzer as a part 
thereof, and which referred to the allegations of the answers of the 


7 


three members of the said Canvassing Board, and thereupon, and not 
otherwise, the said writ of mandamus ordered as follows: 

“Therefore, this is to command you and each of you, that upon 
receipt of this writ of mandamus you do forthwith convene as a 
Canvassing Board for the Territory of Alaska and that you reject 
the vote from the said precincts of Choggiung, Deering, Nushagak, 
Utica, Bonnifield and Vault and that you issue a certificate of 
election to Charles A. Sulzer as having received the greatest num¬ 
ber of votes for Delegate to Congress from Alaska, and that said 
certificate be in the usual form, as by law provided. And this you 
are in nowise to omit. Given under my hand and the seal of this 
court this 23d day of March, 1917. 

“(Seal of Court.) ROBERT W. JENNINGS, Judge.” 

Thereupon the writ of mandamus was immediately served upon the 
members of the Canvassing Board and on the 24th day of March, 1917, 
under the coercive mandate thereof, and not otherwise, the Canvassing 
Board rejected the votes and returns from Choggiung, Deering, 
Nushagak, Utica, Bonnifield and Vault precincts, and thereupon com¬ 
pelled by the mandate of the court issued a certificate of election to 
Charles A. Sulzer, and under judicial command, delivered the same to 
him. That thereafter and on April 3, 1917, Charles A. Sulzer pre¬ 
sented the said certificate of election to the Speaker of the House of 
Representatives and took the oath of office as Delegate from Alaska and 
ever since has exercised the functions of the office. 

(3) NOTICE OF CONTEST OF ELECTION—GROUNDS STATED. 

That thereafter and on the 9th day of April, 1917, this contestant 
made, signed and served upon the said Charles A. Sulzer his notice 
of contest herein in which notice of contest he particularly specified the 
grounds upon which he relies in the said contest and served a true 
copy thereof upon Mr. Sulzer, in the House Office Building, in Wash¬ 
ington, D. C., by delivering to him. personally, said true copy. 

SPECIFIED GROUNDS OF CONTEST 

The following is a brief statement of the grounds of contest specified 
in contestant’s Notice of Contest served on the contestee, Charles A. 
Sulzer, in Washington, D. C., on April 9, 1917. 

I. 

Contestant received 6490 votes at the election for Delegate from 
Alaska, on November 7, 1916, and Sulzer, contestee, received but 6459 


8 


votes; that contestant received the greatest number of votes cast for 
any candidate for said office at said election, and was thereby elected. 

II. 

That on March 1, 1917, the Territorial Canvassing Board, after hav¬ 
ing duly canvassed and compiled all the election returns from said 
Territory so cast for any candidate for Delegate to Congress from 
Alaska duly and publicly declared that this contestant had received 
the greatest number of votes cast for any candidate for said office at 
said election, and was elected and entitled to have and receive the 
certificate of election therefor, and declare their intention of delivering 
the said certificate to him, this contestant, on March 2, 1917. 

III. 

That the suit of Sulzer v. the Canvassing Board, so begun on IMarch 
2, 3917, by the contested herein, was without any authority of law and 
the proceedings therein and the judgment and writ were of no effect 
in law or equity; that the said court and the judge thereof were in¬ 
equitable, unjust and partisan and said court was Avithout authority or 
jurisdiction to compel the Canvassing Board to reject the said 69 votes 
so cast for this contestant in the precincts so rejected, or to compel 
said Board to give said Sulzer the certificate of election, and all such 
proceedings Avere Amid and in fraud of contestant’s and the public’s 
right. 

IV. 

Contestant objects to counting the returns from the precinct of 
Tokotna for the same reason that caused the rejection of those in Chog- 
giung, Nushagak, Deering, Utica, and Bonnifield precincts. 

Y. 

Contestant objects to counting the returns from the precincts of 
Juneau No. 1, Tokotna and Boring for the same reason that caused the 
rejection of those in Vault precinct. 

VI. 

Contestant objects that the returns from the precincts of Choggiung, 
Nushagak, Deering, Utica, Bonnifield, and Vault were rejected from the 
count in the canvass and compilation for Delegate from Alaska, but 
were retained and counted for all other officers voted for at said elec¬ 
tion. 


9 


VII. 

Contestant objects to the action of the court and Canvassing Board 
in rejecting said 69 votes so cast for contestant at Choggiung, Nushagak, 
Deering, Utica, Bonnifield and Vault precincts, and asks the House of 
Representatives to count them for him. 

VIII. 

Contestant objects that 34 votes cast by soldiers and men enlisted in 
the United States regular army stationed at Fort Gibbon, Alaska, were 
counted for Sulzer, contestee. 

IX. 

Contestant objects that 4 votes cast by soldiers and men enlisted in 
the United States regular army stationed at Fort Egbert, Eagle, Alaska, 
were counted for Sulzer. 


X. 

Contestant objects that any ballots or returns shall be excluded or 
rejected from the canvass and compilation of the returns of said elec¬ 
tion for Delegate from Alaska for* the alleged reason that the same are 
in conflict with Chapter 25 Sess. Laws Alaska, 1915, aforesaid, be¬ 
cause said Territorial Legislature of Alaska did not have authority to 
alter, amend, modify or repeal the election laws so enacted by Congress 
in the Act of May 7, 1906, ‘‘An Act providing for the election of a 
Delegate to the House of Representatives from the Territory of Alaska. ’ ’ 

(4) SULZER’S ANSWER AND CROSS-PETITION. 

On May 9, 1917, Mr. Sulzer served a copy of his Answer and Cross- 
Petition in contest on this contestant. The allegations of fact in Con¬ 
testant’s Notice of Contest are substantially admitted, but the conclu¬ 
sions are denied. In his affirmative defense therein, in the nature of a 
cross petition or notice of contest, Sulzer alleges certain other ir¬ 
regularities in the election and in the official returns not stated in his 
petition for IMandamus before Judge Jennings, but he bases these 
charges of irregularities almost wholly upon the Act of the Territorial 
Legislature entitled “An Act to provide official ballots for elections in 
the Territory of Alaska.” Sess. Laws Alaska, 1915, pages 55-66. But 
that Act being in direct conflict with the Organic Acts of Congress of 
May 7, 1906, and August 24, 1912, is void, and hence the arguments 
based on it fall with it. 


10 


(5) REPLY AND ANSWER OF CONTESTANT. 

And on May 12, 1917, this contestant served his reply and answer on 
Sulzer, which amounts to a general denial of the allegations in Sulzer s 
answer, and thus the case is at issue. Contestant in his said reply and 
answer makes additional allegations by way of defense, but they do 
not, probably, necessitate any further pleadings, and the case is now 
ready for taking testimony under the statutes. 

POINTS AND AUTHORITIES 

1. UNITED STATES ELECTION LAWS. 

(1) . United States Election Laws in States. 

(2) . The Power of Congress to govern a Territory. 

(3) . United States Election Laws in a Territory. 

(4) . United States Election Laws in Alaska. 

(5) . Territorial Amendments to Organic Act. 

(1) UNITED STATES ELECTION LAWS IN STATES. 

The Supreme Court of the United States in the case of United States 
V. Gradwell, and other defendants, decided April 9, 1917, and not yet 
reported, gave an outline history of the enactment of election laws by 
Congress for the election of Representatives in the Congress of the 
United States. 

“The power of Congress to deal with the election of Senators 
and Representatives is derived from Section 4, Article I, of the 
Constitution of the United States, providing that: 

‘The time', places, and manner of holding elections for Senators 
and Representatives shall be prescribed in each State by the 
Legislature thereof; but the Congress may at any time by law make 
or alter such regulations except as to the places of choosing 
Senators. ’ 

“AVhatever doubt may at one time have existed as to the extent 
of the power which Congress may exercise upon this constitutional 
sanction in the prescribing of regulations for the conduct of elec¬ 
tions for Representatives in Congress or in adopting regulations 
which States have prescribed for that purpose has been settled by 
repeated decisions of this court, in Ex Parte Siebold, 100 U. S. 371 
(1879), Ex Parte Clark, 100 U. S. 399, (1879), Ex Parte 
Yarborough, 110 U. S. 651 (1884) and in United States v. Mosley, 
228 U. S. 383 (1915). 

“Although Congress has had this power of regulating the con¬ 
duct of congressional elections from the organization of the govern¬ 
ment, our legislative history upon the subject shows that except 



11 


for about twenty-four years of the one hundred and twenty-eight 
years since the government was organized, it has been its policy to 
leave such regulations almost entirely to the States, whose repre¬ 
sentatives Congressmen are. For more than fifty years no (Congres¬ 
sional action whatever was taken on the subject until 1842 when a 
law was enacted requiring that Eepresentatives be elected by Dis¬ 
tricts (5 Stat. at Large, p. 491) thus doing away with the practice 
which had prevailed in some States of electing on a single State 
ticket all of the members of Congress for which the State was 
entitled. 

‘‘Then followed twenty-four years more before further action was 
taken on the subject when Congress provided for the time and mode 
of electing United States Senators (14 Stat. at Large, 243) and it 
was not until four years later; in 1870, that, for the first time, a 
comprehensive system of dealing with congressional elections was 
enacted. ^ ^ It is a matter of general as of legal history 

that Congress, after twenty-four years of experience, returned to 
its former attitude toward such elections and repealed all of these 
laws with the exception of a few sections not relavent here. 

“The policy of thus entrusting the conduct of elections to state 
laws, administered by .state officers, which has prevailed from the 
foundation of the Government to our day, with the exception, as 
we have seen, of twenty-four years, was proposed by the makers 
of the Constitution and was entered upon advisedly by the people 
who adopted it, as clearly appears from the reply of IMadison to 
Monroe in the debates in the Virginia Convention, saying that: 

‘It was found impossible to fix the time, place, and manner of 
election of Representatives in the Constitution. It was found 
necessary to leave the regulation of these, in the first place, to the 
State Governments as being best acquainted with the situation of 
the people, subject to the control of the general Government, in 
order to enable it to produce uniformity and prevent its own dis¬ 
solution. Were they exclusively under the control 

of State governments, the general government might easily be dis¬ 
solved. But if they be regulated properly by the State Legislatures 
the Congressional control will probably never be exercised.’ ” 

United States v. Gradwell, et al. Nos. 683, 684, 775, and 776, 
Oct. Term, 1916. 

It has, then, been the policy of Congress for the greater part of our 
constitutional life as a nation, and now is, to leave the conduct of the 
election of members of the House of Representatives to state laws, ad¬ 
ministered by state officers, though Congress has the constitutional right 
of exclusive or supervisory control, and for twenty-four years exercised 
that right by positive statutes such as that of 1870. There is not now 
any separate federal system for the election of Representatives from 


12 


states: they are now elected in each State under the state election laws, 
controlled by the provisions of such laws and the State officials. The 
state election machinery is thus borrowed by the United States for its 
use in such elections and it adopts such laws by implication and use. 

In Ex Parte Siebold, 100 U. S. 371, the Supreme Court of the United 
States says of this dual system: 

“That the duties devolved on the officers of election are duties 
which they owe to the United States as well as to the State, is 
further evidenced by the fact that they have always been so re¬ 
garded by the House of Representatives itself. In most cases of 
contested elections, the conduct of those officers is examined and 
scrutinized by that body as a matter of right; and their failure to 
perform their duties is often made the ground of decision. Their 
conduct is justly regarded as subject to the fullest exposure; and 
the right to examine them personally, and to inspect all their pro¬ 
ceedings and papers, has always been maintained. This could not 
be done if the officers were amenable only to the supervision of the 
State Government, which appointed them.” 

Ex Parte Siebold, 100 U. S. 371 (389). 

It follows that while Congress has paramount authority under Sec¬ 
tion 4 of Article I. of the Constitution to establish and maintain a com¬ 
plete and exclusive system of laws for the election of Representatives 
from the States, it does not do so but accomplishes its purposes quite 
as effectually by permitting the States to hold the elections under State 
laws. 

(2) THE POWER OF CONGRESS TO GOVERN A TERRITORY. 

Article I. Section 4, of the Constitution has no application except in 
a State, and no reference to conditions outside the territorial dominion 
of a State. This is quite clearly stated, in part at least, in the Siebold 
case. (The italics are mine.) 

“This concurrent jurisdiction which the national government 
necessarily possesses to exercise its power of sovereignty in all 
parts of the United States is distinct from that exclusive power 
which, by the first article of the Constitution, it is authorized to 
exercise over the District of Columbia, and over those places within 
a State which are purchased by consent of the legislature thereof, 
for the erection of forts, magazines, arsenals, dock-yards, and other 
needful buildings. There its jurisdiction is absolutely, exclusive of 
that of the State, unless, as is sometimes stipulated, power is given 
to the latter to serve the ordinary process of its courts in the 
precinct acquired.” 

Ex Parte Siebold, supra, (395). 


13 


That clause of the Constitution, Article I., Section 8, giving Congress 
power “to exercise exclusive legislation in all cases whatsoever” over 
the District of Columbia and the sites of forts, magazines, arsenals, dock¬ 
yards, and other needful buildings in States, is not more exclusive in its 
grant than the power given Congress to enact legislation for the Ter¬ 
ritories. Article IV, Section 3, of the Constitution, provides: 

“That Congress shall have power to dispose of and make all 
needful rules and regulations respecting the Territory or other 
property of the United States.” 

Whether the power of Congress to govern tthe Territories is based 
solely on this clause of the Constitution or requires also the support of 
other clauses is immaterial in this case, for the authorities are perfectly 
agreed that it exists and is plenary and paramount. The Supreme 
Court of the United States in the case of National Bank v. County of 
Yankton, 101 U. S. 129 (133), has stated the general rule applicable 
alike to Dakota and Alaska (italics mine) : 

“All territory within the jurisdiction of the United States not 
included in any state must necessarily be governed by or under 
the authority of Congress. The Territories are but political sub¬ 
divisions of the outlying dominion of the United States. Their 
relation to the general government is much the same as that which 
counties bear to the respective States, and Congress may legislate 
for them as a State does for its municipal organizations. 
organic law of a Territory takes the place of a constitution as the 
fundamental law of the local government. It is obligatory on and 
hinds the territorial authorities; but Congress is supreme, and for 
the purposes of this department of its governmental authority has 
all the powers of the people of the United States, except such as 
have been expressly or by implication reserved in the prohibitions 
of the Constitution. 

“In the organic act of Dakota there was not an express reserva¬ 
tion of power in Congress to amend the acts of the territorial 

0 legislature, nor was it necessary. Such a power is an incident of 
sovereignty, and continues until granted away. Congress may not 
only abrogate laws of the territorial legislatures, but it may itself 
legislate directly for the local government, it may make a void act 
of the legislature valid, and a valid act void. In other words, it 
has full and complete legislative authority over the people of the 
Territories and all the departments of the Territorial governments. 
It may do for the Territories what the people, under the Constitu¬ 
tion of the United States, may do for the States. ’ ’ 

National Bank v. County of Yankton, 101 U. S. 129 (133). 

The case of Binns v. United States, 194 U. S. 486, arose in Alaska and 
was decided in 1904, prior to the passage by Congress of the Organic 


14 


Acts of May 7, 1906, and August 24, 1912, and in considering the power 
which Congress possessed in the government of that Territory the court 
said: 


‘Mt must be remembered that Congress, in the government of 
the Territories as well as of the District of Columbia, has plenary 
power, save as controlled by the provisions of the Constitution, that 
the form of government it shall establish is not prescribed, and may 
not necessarily b(? the same in all the Territories. We are ac¬ 
customed to that generally adopted for the Territories, of a quasi 
state government, with executive, legislative, and judicial officers, 
and a legislature, endowed with the power of local taxation, and 
local expenditures, but Congress is not limited to this form. In 
the District of Columbia it has adopted a different mode of govern¬ 
ment, and in Alaska still another. It may legislate directly in re¬ 
spect to the local affairs of a Territory or transfer the power of 
such legislation to a legislature elected by the citizens of the Ter¬ 
ritory. It has provided in the District of Columbia for a board 
of three commissioners, who are the controlling officers of the Dis¬ 
trict. It may entrust to them a large volume of legislature power, 
or it may by direct legislation create the whole body of statutory 
laws applicable thereto. For Alaska, Congress has established a 
government of a different form. It has provided no legislative 
body but only executive and judicial officers. It has enacted a 
penal and civil code. Having created no legislative body and pro¬ 
vided for no local legislation in respect to the matter of revenue, it 
has established a revenue system of its own, applicable alone to that 
Territory. Instead of raising revenue by direct taxation upon 
property, it has, as it might rightfully do, provided for that revenue 
by means of license taxes.” 

The case of Ferris v. Higley, 87 U. S. (20 Wall) 375 arose in the 
Territory of Utah over a conflict between an Act of the Territorial 
Legislature and the organic act. The Supreme Court said on this dif¬ 
ference (p. 380),— (italics are mine) : 

‘‘There remains then only the further inquiry whether it isi> in¬ 
consistent with any part of the organic act itself. That act estab¬ 
lished a complete system of local government. It stands as the 
constitution or fundamental law of the Territory. It provides for 
the executive, legislative, and judicial departments of government. 
It prescribes their functions, their manner of appointment and elec¬ 
tion, their compensation and tenure of office. In regard to the 
judiciary, it creates the courts, distributes the judicial power among 
them, and provides all the general machinery of courts, such as 
clerk, marshal, prosecuting attorney, &c. It is here then, if any- 
wffiere, that we should look for anything inconsistent with the power 
conferred on the Probate Courts by the Territorial Legislature. 


15 


* * ^ The act of the Territorial legislature conferring general 

jurisdiction in chancery and at law on the Prohate Court is, there¬ 
for, void.’^ 

Ferris v. Higley, 87 U. S. (20 Wall.) 375. 

And in the case of Clayton v. Utah Territory, 132 U. S. 632, the 
Supreme Court affirmed the ruling in Ferris v. Higley, and also held 
(in syllabus) : 

“Under the organic act of that Territory the power to appoint 
an auditor of public accounts is vested exclusively in the governor 
and council; so much of the acts of the legislature of Utah of Jan¬ 
uary 20, 1852, and February 22, 1878, as relates to the mode of 
appointing an auditor of public accounts, is in conflict with the 
organic act and is invalid.” 

Clayton v. Utah Territory, 132 U. S. 632. 

(3) UNITED STATES ELECTION LAWS IN A TERRITORY. 

There is no constitutional requirement that even an organized Ter¬ 
ritory shall be represented in Congress by a Delegate from that Ter- 
ritoiy. The office is a Congressional creation and when provided is 
exclusively under the legislative.control and power of Congress. The 
office may be abolished at any moment by a repeal by Congress of the 
organic act providing for it, and the Delegate sits in the House at the 
will of Congress. The House of Representatives has had frequent oc¬ 
casion to pronounce upon these fundamental propositions in respect to 
contested election cases from the Territories and the law is quite fully 
noted in Rowell’s Contested Election Cases, pp. 664-667. 

The jurisdiction of Congress over the election of a Delegate from 
a Territory “is absolutely exclusive/’ as was pointed out in the Siebold 
case. Congress alone hasi power to provide the office and for the elec¬ 
tion or appointment of the Delegate. Congress has exclusive power to 
flx the qualifications of the Delegate, and to provide the method of his 
election, and therefore to pass election laws in a Territory. 

By the Act of March 22, 1882, 22 Stat, L. 30, section; 9, the election 
laws in force in the Territory of Utah were repealed and all officials re¬ 
moved and a new system enacted for the control of the election of a 
Delegate to Congress from, that Territor 5 ^ The matter came before the 
Supreme Court of the United States in the case of Murphy v. Ramsey. 
114 U. S. 15 (44-45), and the court said (the italics are mine) : 

“The counsel for the appellants in argument seem to question 
the constitutional power of Congress to pass the Act of March 22, 


16 


1882, so far as it abridges the rights of the electors in the Territory 
Tinder previous laws. But that question is, we think, no longer 
open to discussion. It has passed beyond the stage of controversy 
into final judgment. The people of the United States, as sovereign 
owners of the National Territories, have supreme power over them 
and their inhabitants. In the exercise of this sovereign dominion, 
they are represented by the Government of the United States, to 
whom all the powers of government over that subject have been 
delegated, subject only to such restrictions as are expressed in the 
Constitution, or are necessarily implied in its terms, or in the pur¬ 
poses and objects of the power itself, for it may well be admitted 
in respect to this, as to every power of society over its members, 
that it is not absolute and unlimited. But in ordaining govern¬ 
ment for the Territories, and the people who inhabit them, all the 
discretion which belongs to legislative power is vested in Congress; 
and that extends, beyond all controversy, to determining by law, 
from time to time, the form of the local government in a particular 
Territory, and the qualifications of those who shall administer it. 
It rests with Congress to say whether, in a given case, any of the 
people, resident in the Te^witory, shall participate in the election 
of its officers or the making of its laws; and it may, therefore, take 
from them any right of suffrage it may previously have conferred, 
or at any time modify or ahndge it, as it may deem expedient. The 
right of local self-government, as known to our system as a 
constitutional franchise, belongs,' under the Constitution, to the 
States and to the people thereof, by whom that Constitution was 
ordained, and to whom by its terms all power not conferred by it 
upon the government of the United States was expressly reserved. 
The personal and civil rights of the inhabitants of the Territories 
are secured to them, as to other citizens, by the principles of 
constitutional liberty which restrain all the agencies of govern¬ 
ment, State and National; their political rights are franchises which 
they hold as privileges in the legislative discretion of the Congress 
of the U^iited States. This doctrine was fully and forcibly de¬ 
clared by the Chief Justice, delivering the opinion of the court in 
National Bank v. County of Yankton, 101 U. S. 129. See also 
American Ins. Co. v. Canter, 1 Pet. 511; United States v. Gratiot, 
14 Pet. 526; Cross v. Harrison, 16 How. 164; Dred Scott v. San¬ 
ford, 19 How. 393.’^ 

Murphy v. Ramsey, 114 U. S. 15 (44-45). 

It follows from the Utah case and the general rule that Congress has 
the same sovereign, paramount and exclusive control over the election of 
a Delegate in a Territory as over other matters of government therein. 

(4) UNITED STATES ELECTION LAWS IN ALASKA. 

There is, of course, no constitutional requirement that Alaska Ter¬ 
ritory shall be represented in Congress by a Delegate from that Ter¬ 
ritory. 


17 


“Alaska is one of the Territories of the United States.” Steamer 
Coquitlam United States, 163 U. S. 346, decided May 18, 1896. “Nor 
can it be doubted that it is an organized Territory.” Binns v. United 
States, 194 U. S. 486, decided IMay 31, 1904. The two foregoing cases 
were reaffirmed in the Bassmussen case from Alaska, and again that 
court announced that “Alaska is one of the Territories of the United 
States.” Rassmussen v. United States, 197 U. S. 516, decided April 
10, 1905. 

But it was not until May 7, 1906, that Congress passed the Act en¬ 
titled “An Act providing for the election of a Delegate to the-House 
of Representatives from the Territory of Alaska,” 34 Stat. L. 169. 
Thus after ]\Iay 17, 1884, Alaska was one of the organized Territories 
of the United States, provided with executive and judicial departments, 
but it had neither a Delegate in Congress nor a Legislative Assembly. 
The Delegate was first provided for by the Act of May 7, 1906, and 
the Legislature by the Act of August 24, 1912. For twenty-two years 
the organized Territory of Alaska existed without any Delegate or other 
representative in Congress; and for twenty-eight years without a 
Legislative Assembly. Neither was provided until Congress judged it 
was in the interest of better government there that it should be done, 
and when done it was accomplished by an Act of Congress. It must 
be distinctly noted that the law for the election of a Delegate was 
passed by Congress six years before that for the creation of a Legisla¬ 
ture. 

SYNOPSIS OF ORGANIC ACT ENTITLED: 

“An ACT PROVIDING FOR THE ELECTION OF A DELE¬ 
GATE TO THE HOUSE OF REPRESENTATIVES FROM THE 
TERRITORY OF ALASKA,” Approved May 7, 1906, 34 Stat. 
L. 169. 

Sec. 1. of that Act provided (italics mine) : 

“That the people of the Territory of Alaska shall be represented 
by a Delegate in the House of Representatives of the United States, 
chosen hy the people thereof in the manner and at the time herein¬ 
after prescribed, and who shall he hnowii as the Delegate from 
Alaska.’^ 

The section then states the qualifications of the Delegate, and fixes 
his compensation and mileage. 

Sec. 2 of the Act fixes the date of the election and provides for the 
election of the first Delegate for the short term. 

Sec. 3 fixes the qualifications of electors. 

Sec. 4 provides for elections in incorporated towns. 


» 


18 


Sec. 5 provides for the election outside incorporated towns. 

Sec. 6 provides election officers. 

Sec. 7 provides for Delegate’s watchers at the polls. 

Sec. 8 provides for filling vacancies at elections, 

Sec. 9 of the Act provides (italics mine) : 

“Sec. 9. That the election boards herein provided for shall keep 
the several polling places open for the reception of votes from eight 
o’clock antemeridian until seven o’clock postmeridian on the day of 
election. The voting at said election shall he hy printed or ivritten 
ballot. The ballot at said first election shall be substantially in the 
following form: 

‘ For Delegate from Alaska. ’ 

^For the short term (here insert the name of the person voted for).’ 

‘For the long term (here insert the name of the person voted for).’ 

At all elections after said first election the ballot shall be substantially 
in the following form: 

‘For Delegate from Alaska.’ 

‘{Here insert the name of the person voted for).’ 

Such ballot shall be folded by the voter so as not to disclose the 
vote, and by him handed to any one of the judges of election, who 
shall immediately, in the presence of the voter and of all the mem¬ 
bers of the election board, deposit the same, folded as aforesaid, in 
the ballot box, where the same shall remain untounched until the 
polls are closed. At the time the ballot is so deposited the clerks 
of election shall each of them enter in his duplicate register the 
name of the voter and the fact that he has voted.” 

Sec. 10 provides for challenges and swearing in votes. 

Sec. 11 provides for precinct canvass and return. 

Sec. 12 of the Act is as follows (italics mine) : 

“Sec. 12. That the governor, the surveyor-general and the col¬ 
lector of customs for Alaska shall constitute a canvassing board for 
the Territory of Alaska to canvass and compile in ivriting the vote 
specified in the certificates of election returned to the governor 
from all the several election precincts as aforesaid. 

hi case it shall appear to said board that no election return as 
hereinbefore prescribed has been received by the govrnor from any 
precinct in which an election has been held, the said board may ac¬ 
cept in place thereof the certified copy of the certificate of election 
for such precinct received from the clerk of the court, and may 
canvass and compile the same with the other election returns. 

Said board, upon the completion of said canvass, shall declare 
the person who has received the greatest number of votes for Dele- 


19 


gate to be the duly elected Delegate from Alaska for the term for 
which he has been elected, and shall issue and deliver to him in 
writing under their hands and seals a certificate of his election.” 

Sec. 13 provides for payment of election expenses. 

Sec. 14 provides for payment of election expenses. 

Sec. 15 penalties for violation of election laws. 

Sec. 16. Act takes effect on passage. 

No amendment was made to this law until the passage by Congress 
of the Act of 1912. ‘‘An Act to create a Legislative Assembly in the 
Territory of Alaska, to confer legislative power thereon, and for other 
purposes,” approved August 24, 1912, 37 Stat. L. 512. Two sections of 
this Act were provided so as specially to extend the election law of 
1906 to the election of members of the Alaska legislature, and to change 
the date of holding the Delegate election from August to the same date 
in November as was provided for the election of members of the Legisla¬ 
ture. These amendatory clauses are found in sections 5 and 17 of the 
Act of August 24, 1912, 37 Stat. L. 512, and read as follows (italics 
mine) : 

“Sec. 5. ELECTION OF MEMBERS OF THE LEGISLA¬ 
TURE. That the first election for members of the Legislature of 
Alaska shall be held on the Tuesday next after the first Monday in 
November, nineteen hundred and twelve, and all subsequent elec¬ 
tions for the election of such members shall be held on the Tuesday 
next after the first Monday in November biennially thereafter; 
that the qualifications of electors, the regulations governing the 
creation of voting precincts, the appointment and qualifications of 
election officers, the supervision of elections, the giving of notices 
thereof, the forms of ballots, the register of votes, the challenging 
of voters, and the returns and the canvass of the returns of the re- 
sidt of all such elections for members of the Legislature shall be 
the same as those prescnbed in the Act of Congress entitled ^An 
Act providing for the election of a Delegate to the House of Repre¬ 
sentatives from the Territory of Alaska,’ approved May seventh, 
nineteen hundred and. six, and all the provisions of said Act ivhich 
are applicable are extended to said elections for members of the 
legislature, and shall govern the same, and the canvassing board 
created by said Act shall canvass the returns of such elections and 
issue certificates of election to each member elected to the said 
legislature; and all the penal provisions contained in section fifteen 
of the said Act shall apply to elections for members of the legisla¬ 
ture as fidly as they now apply to elections for Delegate from 
Alaska to the House of Representatives.” 

“Sec. 17. ELECTION OF DELEGATES.—That after the year 
nineteen hundred and twelve the election for Delegate from the 


20 


Territory of Alaska, provided by ‘‘An Act providing for the elec¬ 
tion of a Delegate to the House of Representatives from the Ter¬ 
ritory of Alaska,” approved May seventh, nineteen hundred and 
six, shall be held on the Tuesday next after the first Monday in 
November in the year nineteen hundred and fourteen, and every 
second year thereafter on the said Tuesday next after the first 
Monday in November, and all of the provisions of the aforesaid Act 
shall continue to he in fidl force and effect and shall apply to the 
said election in every respect as is now provided for the election to 
he held in the month of August therein; Provided, That the time 
for holding an election in said Territory for Delegate in Alaska to 
the House of Representatives to fill a vacancy, whether such 
vacancy is caused by failure to elect at the time prescribed by law, 
or by the death, resignation, or incapacity of a person elected, may 
be prescribed by an act passed by the Legislature of the Territory 
of Alaska: Provided further, That tvhen such election is held it 
shall he governed in every respect hy the laws passed hy Congress 
governing such election.” 

The foregoing Organic Acts, that of May 7, 1906, and sections 5 and 
17 of the Act of August 24, 1912, are the United States Election Laws 
in Alaska for the election of Delegate to Congress and members of the 
Legislature and are the only Congressional enactments in force there 
on that subject. 

It must be apparent to even the casual reader that Congress has re¬ 
served to itself the sole power to legislate on that subject. No power is 
given to the Legislature of Alaska to alter, amend, modify or repeal 
these provisions of the two Organic Acts, in relation to such elections, 
and the possibility of the claim of such power is expressly negatived 
by the plain and positive prohibitions in the Act creating the Legisla¬ 
ture. Neither can the Legislature alter, amend, modify, or repeal the 
provisions of these laws in so far as they apply to the election of mem¬ 
bers of the Legislature. Any alteration, amendment,, modification, or 
repeal of any of the provisions of these acts must be made by Congres¬ 
sional enactment, and not otherwise. 

(5) TERRITORIAL AMENDMENTS TO ORGANIC ACTS. 

Notwithstanding the positive prohibitions contained in sections 5 and 
17 of the Organic Act creating the Legislature of Alaska it passed an 
act entitled “An Act to provide official ballots for elections in the Ter¬ 
ritory of Alaska.” Sessions Laws of Alaska, 1915, pages 55-66. 

The title of the Act is quite feeble to express the extent of the 
amendatory enactment for it seeks to remodel the Organic Act of May 
7, 1906, in many respects not included in the title, notwithstanding the 
prohibitions contained in sections 5 and 37 of the Act of xVugust 24, 


21 


1912, the Organic Act creating the Legislature. It does not repeal those 
Organic Acts entirely, for in section 20 of the Territorial Act the 
Legislature provided: 

‘‘Sec. 20. That the Act of Congress entitled ‘An Act provid¬ 
ing for the election of a Delegate to the House of Representatives 
from the Territory of Alaska,’ approved May seventh, nineteen 
hundred and six, or any acts amendatory thereof shall continue to 
apply to all elections except insofar as it is modified or amended by 
this Act.” 

In other words, the legislature attempted to amend and repeal the 
United States election laws for the election of the Delegate from Alaska 
—the Organic Act of May 7, 1096, and Sections 5 and 17 of the Act of 
Congress of August 24, 1912,—the Organic Act creating the Legislature 
itself, “insofar as it is modified or amended by this act.” But they 
kindly permit those two Acts to exist insofar as they are not “modified 
or amended by this Act ’ ’! What’s the Constitution between friends, 
anyway ? 

Synopsis of the Act of the Territorial Legislature entitled—“An act 
to provide official ballots for elections in the Territory of Alaska,” 
Chap. 25, Sess. Laws of Alaska, 1915, page 55, (italics mine) : 

“Sec. 1. That after the passage of this act, for all elections in 
the Territory of Alaska provided for in an Act of Congress en¬ 
titled : ‘ An act to create a Legislative Assembly in the Territory of 
Alaska, to confer legislative power thereon, and for other pur¬ 
poses,’ approved August twenty-fourth, nineteen hundred and 
twelve, the Clerk of the District Court of each judicial division of 
the Territory shall prepare ballots for use in their respective divi¬ 
sions. ’ ’ 

Sec. 2 ballots to be printed on white paper. 

Sec. 3 form of ballot for Delegate election, etc. 

Sec. 4 ballot form carries instructions to voters. 

Sec. 5 arrangement names candidates on ballots. 

Sec. 6 names candidates to be separated by lines. 

Sec. 7 names Delegate to Congress to head ballot. 

Sec. 8 names of Territorial senators to follow. 

Sec. 9 names of Territorial representatives. 

Sec. 10 other blank forms to be printed on ballot. 

Sec. 11 method of nominating Delegate to Congress. 

Sec. 12 method of nominating candidates legislature. 

Sec. 13 clerk of court to forward blank ballots to precinct election 
officers. 


22 


Sec. 14 Clerk of court to print and forward ‘‘Sample Ballots.” 

Sec. 15 IT. S. Commissioner to deliver ballots in incorporated towns. 

Sec. 16 polling place shall have election booth. 

Sec. 17 ballots to be marked in booth by elector. 

Sec. 18 marred ballots destroyed new issued. 

Sec. 19 election judge may mark ballot for deficient elector. 

Sec. 20. That the act of Congress entitled “An Act providing 
for the election of a Delegate to the House of Representatives from 
the Territory of Alaska,” approved May seventh, nineteen hundred 
and six, or any acts amendatory thereof shall continue to apply to 
all elections except insofar as it is modified or amended by this 
act. 

Sec. 21. That in any precinct where the election has been legally 
called and no official jballots have been received, the voters are per¬ 
mitted to write or print their ballots, but the judges of election shall 
in this event certify to the facts which prevented the use of the 
official ballots, which certificate must accompany and be made a 
part of the election returns. 

Sec. 22 registration book, qualifications of electors printed thereon. 

Sec. 23 elector may vote in any precinct in division, penalty. 

Sec. 24 official violating election law, penalty. 

Sec. 25 intimidation of voters defined, penalty. 

Sec. 26 fraudulent voting, penalt}^ 

Sec. 27 disqualified person voting, penalty. 

Sec. 28 permitting illegal voting by officer, penalty. 

Sec. 29 attempt officer infiuence voter, penalty. 

Sec. 30 official tampering with ballots, penalty. 

Sec. 31 intimidating or bribing voter, penalty. 

Sec. 32 fraud of elector in casting ballots, penalty. 

Sec. 33 inducing Indians to vote, penalty. 

Sec. 34 nonfeasance or malfeasance of election officers, penalty. 

Sec. 35 sale of liquor on election day, penalty. 

Sec. 36 bribery or infiuencing voter, penalty. 

Sec. 37 unlawful printing or distributing official ballots, penalty. 

Sec. 38 unlawful possession or counterfeiting ballots, penalty. 

Sec. 39 penalty where no other is provided. 

Sec. 40 all acts or parts of acts in conflict with this act are hereby 
repealed insofar as they affect this act. Approved April 27, 1915. 

It will be seen from the foregoing synopsis, that the act of the Ter¬ 
ritorial legislature amending the provisions of the Organic Acts of May 
7, 1906, and sections 5 and 17 of the Act of August 24, 1912, is broad 
and contains many provisions not included within its title. The real 


23 


question is, however: what authority had the Legislature of Alaska to 
pass, the act and to repeal parts of both of the Organic Acts of its very 
creation ? 

No such authority can be found in the organic act of August 24, 1912, 
37 Stat. L. 512, but quite the contrary. Section 17 of that act changes 
the date of the election of Delegate from the month of August to the 
Tuesday next after the first Monday in November in 1912, and on that 
date every two years thereafter, and then specifically provides with re¬ 
spect to the United States Election Law for Alaska, approved May 7, 
1906; “and all of the pwvisions of the aforesaid Act shall continue to 
he in full force and ejfect and shall apply to the said election in every 
respect as is now provided, for the election to he held in the month of 
August therein,” the section then provides the legislature may pre¬ 
scribe the time for holding a special election to fill any vacancy in the 
office of Delegate, but it then provides: “that when such election is held 
it shall he governed in every respect hy the laws passed hy Congress 
governing such election.” 

The Organic Act creating the legislature ‘‘stands as the Constitu¬ 
tion or fundamental law of the Territory.” Ferris v. Higley, 87 U. S. 
375. The decisions of the courts of the United States are in accord that 
the Territorial legislature may not pass any law in conflict with the 
act creating it. The power of Congress in such case is paramount; 
the Territorial Legislature is the creature of Congress and has no 
power except that which Congress gives. 

If it be assumed that the Legislature of Alaska has power to alter, 
amend, modify and repeal the organic Acts’ of Congress mentioned, in¬ 
cluding the election laws therein, what is the limit of its power? If it 
may alter, amend or modify it may repeal, as it attempted to do in its 
act of 1915. And if it may repeal any part it follows logically it may 
repeal all and thereby destroy the Acts of Congress for the election of 
a Delegate from Alaska and members of the Alaskan Legislature. Of 
course, Congress had not given any such power to the Legislature of 
Alaska, but has by ])roper and apt phrase specially prohibited any at¬ 
tempt to exercise sucli power, by reserving to Congress itself full control 
over the Imited States election laws in the Acts of May 7, 1906, and 
August 24, 1912, for the election of the Delegate to Congress and the 
members of the Alaska Legislature. 

2. THE SUIT OF SULZER V. THE CANVASSING BOARD. 

(1) A suit to overcome Executive honesty. 

(2) Collusion and judicial partisanship. 


24 


(3) Contestant not made a party. 

(4) A disqualified judge. 

(5) No mandamus against a Governor. 

(6) Relators cause of action. 

(7) An arbitrary decision. 

(8) IMandamus against the Board. 

(9) Another plain Remedy at Law. 

(10) What Judge Jennings Decided, and Why. 

(1) A SUIT TO OVERCOME EXECUTIVE HONESTY. 

George B. Grigsbjq a recent and violent convert from Republicanism, 
the Attorney General elect, and the acting general counsel for the Ter¬ 
ritory appointed by the Governor, was the legal adviser of the Canvass¬ 
ing Board in its canvass and compilation of the returns. 

Robert W. Jennings, judge of the district court before whom the 
case of Sulzer v. The Canvassing Board was heard, was a candidate for 
Delegate to Congress at the general election in Alaska in August, 1912, 
and was overwhelmingly defeated, running a poor fourth. After that 
he was appointed judge of said court at Juneau. 

John P. Pugh, collector of customs for Alaska, stationed at Juneau, 
is Judge Jennings brother-in-law, and ex-officio a member of the Ter¬ 
ritorial Canvassing Board. 

Governor J. F. A. Strong, Surveyor General Charles E. Davidson, 
and Collector of Customs John P. Pugh, comprised the Canvassing 
Board having charge of the canvass and compilation of the election re¬ 
turns for the Delegate election of November 7, 1916. 

When the canvassing Board met at Juneau in January, 1917,. to 
canvass and compile said returns it was attended by Grigsby, as general 
counsel for the Territory, appointed by Governor Strong, who acted in 
said matter officially. At its meeting on January 20, 1917, at the Gov¬ 
ernor’s office, the Board first considered the returns from Utica precinct, 
and found that the certificate required by the Territorial statute, 
explaining why the Congressional form of ballot had been used in the 
precinct instead of the Territorial form, was not included with the re¬ 
turns, and was then advised by Mr. Grigsby, “In that case you have 
the right to send for the certificate”—which Governor Strong did. At 
the same time the Deering return, from the same division, was ex¬ 
amined and found to have the same alleged defect. Whereupon Mr. 
Grigsby advised the Board ‘' It does not necessarily follow that you can 
not count the votes.” But both precinct returns were passed for the 
time awaiting the amended returns which were then in the Clerk’s 


25 

office in Nome, Alaska, and which the Governor had telegraphed for 
upon Grigsby’s advice. 

On January 31, 1917, the Canvassing Board opened the returns from 
Choggiung, and some irregularities appearing therein the following ac¬ 
tion was taken, and is thus stated in the official minutes of the Board 
on that day: 

CHOGGIUNG. 

“C. E. Davidson. I move that we lay over these ballots until 
tomorrow and ask l\Ir. Grigsby for his official opinion on the three 
precincts, namely, Naknek, Nushagak, Choggiung. 

IMotion unanimously carried.” 

On February 1, 1917, Mr. Grigsby, being in attendance upon the 
Board in his official capacity as general counsel for the Territory and 
Attorney-General elect, made the following statement to the Board, 
which is found in the official minutes of the Board of that date: 

“IMr. Grigsby. On behalf of Mr. Ilellenthal representing Mr. 
C. A. Sulzer, 1 protest the vote from Bristol Bay precincts, Chog¬ 
giung, Nushagak, in the Third Division, on the ground that the 
ballots returned are not the official ballots prescribed by the Statute, 
and that no certificate of judges in either of said precincts ac¬ 
companied the returns, explaining why the official ballots were not 
used. 

‘Cl/r. Grigshy. As far as ihe form of the ballot is concerned 1 
do not sec any reason to throw theyn out. 

Mr. Pugh. Mr. Grigshy you mean to say that we are to canvass 
the three precincts, namely Nushagah, Choggiung, and NaJcneh. 

Mr. Grigshy. Yes. 

Governor. ICc will then py'oceed to count those ballots. 

Mr. Grigshy. They are legal ballots when the voters make their 
own ballots. The law provides that if the voter is not provided 
with official ballots they can ynake their own ballots. If the official 
ballots are not provided there is no tray of their knowing how or 

in what order to ynake the ballots.” 

# # * * * # 

Governor. We will take up the Choggiung precinct, Naknek, 
Nushagak—This winds up the Third Division.” 

. And the Territorial Canvassing Board did .on February 1, 1917, of¬ 
ficially canvass and compile the two precincts of Choggiung and 
Nushagak, on the advice of the general counsel for the Territory, George 
B. Grigsby, that the ballots cast were legal and ought to be counted! 

Not only that but every one of the returns which Judge Jennings 
afterwards rejected were so counted, canvassed and compiled by the 
said Canvassing Board upon the advice of Grigsby. And the votes in 


26 


each and every one of the said rejected precincts were counted, cau- 
vessed and compiled for George B. Grigsby, as a candidate for Attorney 
General of Alaska, and were and are now included in the total vote so 
officially counted for him. 

Notwithstanding his advice to the Board, and his credit with the 
same votes, on February 28, 1917, Grigsby wrote a letter of opinion and 
advice to the Board advising its members that the returns in Choggiung, 
Nushagak, Utica, Deering, Bonnifield and Vault were defective and 
ought to be rejected from the canvass of the vote for Delegate! Why ? 
Because in the meantime it was discovered by a compilation of the re¬ 
turns that Wickersham had a majority of 31 votes, and it became neces¬ 
sary, if Sulzer was to be elected, that some precinct returns should be 
rejected! 

And right there the row began. The Governor and Surveyor General 
had been advised by Grigsby that the returns mentioned were legal, and 
acting upon that advice had canvassed and compiled them; they were 
now asked to review their action and reject those votes, for dishonest, 
partisan and political reasons, and having their own ideas of honesty 
under their oaths of office refused to assist in stealing the election. And 
right there the row began—and the appeal to Jndge Jenning’s court! 

(2) COLLUSION AND JUDICIAL PAKTISANSHIP. 

On IMarch 1, 1917, the Canvassing Board had finished the canvass 
and compilation of the returns for the Territory, under the advice of 
Grigsby, and declared in their proceedings and minutes that this con¬ 
testant had received a majority of 31 votes over Sulzer, and officially 
declared its purpose to issue to this contestant the certificate of election 
on the meeting of the Board on the next day. 

On March 2d. Sulzer began a suit praying for the issuance of a re¬ 
straining order against the Canvassing Board and its members to pre¬ 
vent it from taking any further action until the further order of the 
court, and praying for a Writ of IMandamus compelling the canvassing 
board to reject the returns from the challenged precincts which Grigsby 
had advised them to count. The Canvassing Board and its members, 
the Governor, the Surveyor General and Collector of Customs were 
made defendants. The petition was filed in the District Court before 
Judge Jennings, who promptly issued an alternative writ on the same 
day, without notice, commanding the Canvassing Board to reject the 
returns from the precincts mentioned and to issue a certificate of Elec¬ 
tion to Sulzer or to show cause on the next day, iMarch 3d why they did 
not do so! 


27 


This contestant, James Wickersham, was not made a party to the suit 
and was not served with a copy of the alternative writ or any summons 
or notice, and had no notice or information about the bringing of the 
suit, and was at the time in Washington, D. C., in attendance upon the 
closing days of the 64th Congress, in which he was serving as Delegate 
from Alaska. 

The Canvassing Board had no attorney. The general counsel for the 
Territory, Attorney General-elect Grigsby, acted in concert with the at¬ 
torneys for relator, and publiclj^ represented them, leaving his duty as 
the attorney for the Canvassing Board unperformed. The members of 
the Board had no interest in the contest; the case was not defended by 
"7^ ^torney. It resolved itself into an exparte presentation; an uncontested 
suit before a partisan judge to try title to an office between two per¬ 
sons, one of whom was not notified, not present, and had no hearing. 

John F. Pugh, collector of Customs, Judge Jennings’ brother-in-law, 
who had formerly approved and joined in canvassing and compiling the 
challenged returns, appeared on March 6th and filed an answer in which 
he admitted all the allegations in the petition and ‘‘expresses his Avilling- 
ness, as a member of said Canvassing Board, to reject said ballots and 
issue said certificate, but, being only one of said Canvassing Board of 
three, he is powerless in the premises.” On the same day, March 6th, 
the Governor and Surveyor General, also filed an answer, without the 
appearance of any attorney, setting up briefly the facts appearing be¬ 
fore the Board, and alleging: 

“5. 

“These defendants further respectfully state that they have 
made no further answer to the allegations contained in the peti¬ 
tion filed herein, for the reason that the Canvassing Board has no 
funds with ivhich to employ legal counsel, and the members thereof 
do not conceive it to be their duty to employ such counsel and pay 
for his services from their private means.” 

In the lengthy opinion rendered on March 20th, by Judge Jennings 
he said: 

“All the defendants appeared without coupsel, ]\Ir. Davidson, 
beside filing his joint ansAA'er aforesaid, appeared in person. The 
plaintiff moved for judgment on the pleadings, but the court re¬ 
fused to consider the matter on such action, deeming it better to 
take it up on demurrer to the answers. Whereupon plaintiff de¬ 
murred ore tenus to the answers. The court advised the Canvass¬ 
ing Board to secure counsel, AAdiereupon Mr. Davidson made the fol¬ 
lowing statement: 

‘Your Honor, Ave have no interest in it any more than Ave Avould 


28 


like the law point decided, and we have made our answer the best 
we could, and we have no other interest any more than to obey the 
orders of the court whatever they may be.’ ” 

Without hearing any testimony, but upon the ex parte pleadings, 
Judge Jennings delivered a long opinion on demurrer ore tenus, on 
March 20th, and in which he held the precincts challenged must be re¬ 
jected. Thereupon and on March 22d, he issued a peremptory writ of 
mandamus directed to the Canvassing Board commanding it to reject 
the returns from Choggiung, Nushagak, Utica, Deering, Bonnifield and 
Vault, and to issue a certificate of election to the relator Sulzer. 

To prevent the Canvassing Board from applying the alleged rule of 
law in relation to defective returns to other precincts where similar de¬ 
fects existed the judge found as a fact and ordered in said peremptory 
w^it of mandamus: 

“Whereas the court doth further find that with the exception of 
making the deduction aforesaid and of issuing said certificate said 
Board has completed the canvas.” * ^ ^ m ^ 

“Therefore, this is to command you, and each of you, that upon 
receipt of this writ of mandamus you do worthvdth convene as a 
Canvassing Board for the Territory of Alaska, and that you re¬ 
ject the votes from the said precincts of Choggiung, Deering, 
Nushagak, Utica, Bonnifield and Vault, and that you issue a certifi¬ 
cate of election to Charles A. Sulzer as having received the greatest' 
number of votes for Delegate to Congress from Alaska, and that 
said certificate be in the iisual form as by law provided.” 

This suit was not a real contest; the relator controlled the action for 
the plaintiff and defendant Pugh, the judge’s brother-in-law; there was 
no appearance by attorney for the majority of the Canvassing Board, 
who both in person and by their answer disclaimed any interest and re¬ 
fused to employ counsel; the general counsel for the Territory, George 
B. Grigsby, attorney general elect, refused to appear and defend the 
Canvassing Board or the interest of the public or this contestant; 
Grigsby had first advised them to count the returns and then gave an 
opinion advising the Board to reject them; he appeared before the 
Canvassing Board for the attorneys for relator Sulzer and protested 
against canvassing and challenged precincts which he then instructed 
them to canvass and compile as legal returns. The judge, whose duty 
it was to do justice and protect the rights of the public and this con¬ 
testant declined to perform that duty, and the case went by default. It 
was an agreed case—a collusive proceeding, begun in secret and con¬ 
ducted without notice to the contestant, deliberately and unfairly, to de¬ 
prive him and the people of Alaska of the benefit of a fair count at 


29 


the conclusion of a fair election. It was a cowardly and corrupt pro¬ 
ceeding, under the guise of a suit in a court of justice to capture an 
election which the voters had not given relator. Finally under the 
coercive power of the writ and on ]\Iarch 24th, the Canvassing Board 
was compelled to issue the certificate of election and deliver it to Sulzer, 
relator. 

(3) CONTESTANT NOT MADE A PARTY. 

The Canvassing Board on a full and final canvass and compilation of 
all the returns from all the precincts in Alaska officially declared that 
James Wickersham, this contestant, had received 6490 votes and was 
elected; that Charles A. Sulzer, contestee, had received only 6459 votes, 
and was not elected. Now in Sulzer’s suit to try his title and right 
to the certificate of election—to the commission of the people of Alaska 
to appear in Congress and take the oath of office and to represent them 
as Delegate, was this contestant entitled, of right to notice and a hearing ? 

No honest man, be he layman or lawyer, can have any doubt on that 
point, and even Judge Jennings’s conscience as a lawyer troubled him 
till he apologized for his wrongful act in hearing the case without per¬ 
forming his duty in that regard. In his opinion he said (italics mine) : 

“The court advised the cavassing board to secure counsel, where¬ 
upon Mr. Davidson made the following statement: 

‘Your Honor, we have no interest in it any more than we would 
like the law point decided, and we have made our answer the best 
we could, and we have no other interest any more than to obey 
the orders of the court whatever they may be.’ 

‘‘The court thereupon inquired if Judge Wickersham ivas repres¬ 
ented at this hearing, and being ansivered in the negative stated that 
it would hear the oral argument of plaintiff in favor of the de¬ 
murrer and would be glad to consider any argument that any 
friend of Judge Wickersham might wish to make or any brief 
he might choose to file at that time or a later date. 

“It is to be regretted that Judge Wickersham has not inter¬ 
vened herein. He is a proper party, but probably not a necessary 
party. At present, as the Court is informed he is absent from the 
Territory and the date of his return hereto is problematical.’’ 

So the judge knew this contestant was not a party to the suit, heard 
the members of the Canvassing Board disclaim any interest in the 
case, declared contestant was a proper party, knew that he was being 
deprived of his right to the certificate of election without notice, and 
apologized publicly for the wrong, but wilfully and without right con- 
sumated the offense. 

Chapter 3, Title 2 of the Act of June 6, 1900, 31 Stat. L. 336. 


30 


contains the general provisions relating to parties to actions in Alaska. 
Compiled Laws of Alaska, 1913, p. 385. Sections 857 and 870 and 
872 of the Compiled Laws of Alaska provide that (italics mine) : 

“Sec. 857. Every action shall he prosecuted in the name of the 
real party in interest, ’ ’ etc. * * * 

“Sec. 870. All persons having an interest in the subject of the 
action and in obtaining the relief demanded may be joined as 
plaintiffs, except as in this chapter otherwise provided. Any person 
may he made a defendant ivho has or claims an interest in the con¬ 
troversy adverse to the plaintiff, or who is a necessary party to 
the complete determination or settlement of the questions involved 
therein.” 

Section 872 of the Compiled Laws of Alaska, provides (italics mine) : 

“Sec. 872. The court may determine any controversy between 
parties before it when it can be done without prejudice to the 
rights of others, or by saving their rights; hut when a complete 
determination of the controversy cannot he had ivithout the presence 
of other parties, the court shall cause them to he brought in.” 

When, therefore, it became apparent to Judge Jennings that this 
contestant was a “proper party,’’ and he discovered that his interests 
were to be jeopardized by the suit it was his duty to stop the proceed¬ 
ings until the necessary parties were brought in —“the court shall cause 
them to he brought in.” This is not only the law’ but common honesty. 

In Mallow v. Hinde, 12 Wheat. 193, (198), the court held that if 
the right of a party not before the court is inseparably connected w’ith 
the claim of the parties litigant so that a final decision cannot be made 
W’ithout affecting the rights of the absent party, he must be brought in. 
And the court said: 

“We do not put this case upon the ground of jurisdiction, but 
upon the much broader ground, which must equally apply to all 
courts of equity whatever may be their structure as to jurisdiction. 
We put it on the ground that no court can adjudicate directly 

, upon a person’s right, without the party being actually or con¬ 
structively before the court.” 

Mallow v. Hinde, 12 AVheat. 193-198. 

“This court w’ill not make a final decree upon the merits of the 
case, unless all persons who are essentially interested, are made 
parties to the suit, although some of those persons are not within 
the jurisdiction of the court.” 

Russell V. Clark’s Executors, 11 U. S. (7 Cranch), 69 (97). 

In Shields v. Rarrow% 58 U. S. (17 How.) 130, 139, the Supreme 
Court of the United States said on the subject of parties to a suit: 


31 


“The court here points out three classes of parties to a bill 
in equity. They are: 1. Formal parties; 2. Persons having an 
interest in the controversy, and who ought to be made parties, in 
order that the court may act on that rule which requires it to 
decide on, and finally determine the entire controversy, and do 
complete justice, by adjusting all the rights involved in it. These 
persons are commonly termed necessary parties; but if their inter¬ 
ests are separable from those of the parties before the court, so 
that the court can proceed to a decree, and do complete and final 
ju^ice, without affecting other persons not before the court, the 
latter are not indispensable parties; 3. Persons who not only 
have an interest in the controversy, but an interest of such a nature 
that a final decree cannot be made without either affecting that 
interest, or leaving the controversy in such a condition that its 
final termination may be wholly inconsistent with equity and good 
conscience. ’ ’ 

And the court concluded: 

“As to parties having an interest which is inseparable from the 
interests of those before the court, and who are, therefore, indis¬ 
pensable parties see Cameron v. McRoberts, 2 Wheat. 571; Mallow v, 
Hinde, 12, Wheat, 197.’’ 

In California v. So. Pac. Co., 157 U. S., on pages 250-251, the court 
said: 

“And Mr. Justice Curtis added: ‘It remains true, notwith¬ 
standing the Act of Congress and the 47th rule, that a Circuit Court 
can make no decree affecting the rights of an absent person, and 
can make no decree between the parties before it, which so far 
involves or depends upon the rights of an absent person that com¬ 
plete and final justice cannot be done between the parties to the 
suit without affecting those rights. To use the language of this 
court in Elmendorf v. Taylor, 10 Wheat. 167: ‘If the case may 
be completely decided, as between the litigant parties, the circum¬ 
stance that an interest exists in some other person, whom the 
process of the court cannot reach, as if such party be a resident 
of another State, ought not to prevent a decree upon its merits.’ 
But, if the case cannot be thus completely decided the court should 
make no decree.” 

And the court in California v. So. Pac. Co. supra, concluded: 

“Sitting as a court of equity we cannot, in the light of these 
well-settled principles, escape the consideration of the question 
whether other persons who have an immediate interest in resisting 
the demand of complainant are not indispensable parties, or, at least, 
so far necessary that the cause should not go on in their absence. 
Can the court proceed to a decree as between the State and the 
Southern Pacific Company, and do complete and final justice, with¬ 
out affecting other persons not before the court, or leaving the 


32 


controversy in such a condition that its final termination might 
be wholly inconsistent with equity and good conscience,” * * * 

We are of opinion that our original jurisdiction cannot be thus 
extended, and that the bill must be dismissed for want of parties 
who should be joined, but cannot be without ousting the juris¬ 
diction. ’ ’ 

While a suit in mandamus is not strictly a suit in equity it is an 
extraordinary remedy, heard by the judge without a jury, and equitable 
rules apply. Not only that but Section 872 made it the duty of the 
judge '‘to cause them to be brought in” if a party defect existed even 
in a law case. 

Now in the suit of Sulzer v. The Canvassing Board was this con¬ 
testant an indispensable or necessary party? If so it was the duty of 
the judge to refuse to move therein until contestant was brought in as 
a party. Of course, the excuse offered for the failure to make him a 
party will be that the mandamus proceeding was one to compel the 
Canvassing Board to act—to move. But the answer to that sugges¬ 
tion is that neither the petition nor the writ stopped at that point. 
The petition showed on its face that the Canvassing Board was acting, 
but not in the way the petitioner desired. It had canvassed and com¬ 
piled the returns and was proceeding to issue the certificate to this 
contestant; petitioner demanded and received a restraining order to 
stop that action. The board intended to count the returns; petitioner 
demanded that they be rejected, and Judge Jennings rejected them. 
The Board had declared contestant to be elected to the office of 
Delegate to Congress, but Judge Jennings declared the relator elected. 
On its face, the petition and pleadings disclosed an attempt on the part 
of the relator to capture from contestant the object of the suit, the 
subject of the action, the possession of the certificate of election. The 
Canvassing Board declared it was contestant’s property, the relator 
claimed it, and the court decided that Sulzer, and not contestant, was 
entitled to its possession. 

Certainly contestant had the same right to be heard in a suit for 
the possession of the certificate of election that Sulzer had. The court 
must have concluded that relator had a right or interest in the suit, the 
right to have the possession of the certificate. The court knew con¬ 
testant claimed it, the pleadings showed that fact clearly, the petition 
stated it, and alleged that the Canvassing Board had declared con¬ 
testant elected and would deliver the certificate to the contestant; that 
was the principal support of the Sulzer suit. The court knew if relator 
obtained the certificate the contestant must lose it; the pleadings thus 
disclosed the basis of a real controversy between real parties in interest. 


33 


—one of whom was not made a party to the suit! It was the judge’s 
duty to stop the proceedings under section 872 until the real party in 
interest, the party who really represented the other side of the con¬ 
troversy, could be brought into court, but he did not do it! 

The members of the Canvassing Board had each disclaimed any 
interest in the suit, and |)ointed out the real party in interest. This 
contestant was the real party defendant in interest, and was such a 
party as the Supreme Court of the United States in Shields v, Barlow, 
supra said: ‘‘not only had an interest in the controversy, but an interest 
of such a nature that a final decree cannot be made without either 
affecting that interest, or leaving the controversy in such a condition 
that its final termination may be wholly inconsistent with equity and 
good conscience.” 

(4) A DISQUALIFIED JUDGE. 

There are two other defects in parties defendant which Judge Jen¬ 
nings refused to consider. John P. Pugh, Collector of Customs, and 
ex-officio a member of the Canvassing Board, was one of the defendants, 
and also the brother-in-law of Judge Jennings, and a member of his 
family. This fact was known to Judge Jennings, who also knew that 
he was dis(pialiled to hear the case for that reason. Pugh, brother-in- 
law, sat with the Board and joined in canvassing and compiling the 
votes and returns from the cliallenged precincts under the advice of the 
Territorial Counsel, George B. Grigsby, Attorney General elect. 

“l\lr. Pugh : iMr. Grigsby you mean to say that we are to canvass 
the three precincts, namely, Nushagak, Choggiung, and NaknekV 

IMr. Grigsby: Yes. 

Governor: We will proceed then to count those ballots.” 

And Mr. Pugh approved the canvass and compilation of every ballot 
and return which was afterwards rejected on his motion, for he thought 
until the compilation was finally cast up that his partisan, Sulzer, was 
elected, and had a majority of all the votes over this contestant. 

When the fact was finally ascertained that this contestant had the 
majority, and the Sulzer petition was filed, IMr. Pugh rushed in with 
a separate answer admitting all the allegations of Sulzer’s petition 
and declaring under oath “that he believes the votes of the precincts 
mentioned in said petition should not be counted by the Canvassing 
Board for the reasons set forth in said petition and that a certificate of 
election should be issued to said Charles A. Sulzer for said reasons, and 
he expresses his willingness as a member of said Canvassing Board, 
to reject said ballots and issue said certificate; but, being only one of 
said Canvassing Board of three, he is powerless in the premises.” 


34 


And in the affidavit to that answer Pugh took a solemn oath that 
‘T have read the foregoing answer, know the contents thereof, and the 
same is true.” Yet this same brother-in-law Pugh, as a member of the 
Canvassing Board urged and approved the counting of the same ballots 
and returns in Utica and Beering precincts in the matter of the contest 
between Corrigan and Reed, and seated Corrigan on those ballots, 
when if he had rejected them Corrigan would have becm defeated and 
Reed elected; and urged and approved the counting of the same ballots 
and returns in the Croggiung and Nushagak precincts in the matter of 
the contest between IMurray and Holland, and seated Murray on those 
ballots, when if he had rejected them IMurray would have been defeated 
and Holland elected ! In other words, ]\Ir. Pugh swore the returns 
were illegal for Wickersham, but legal for Corrigan and IMurray. His 
oath of illegality was based on the same identical documents; probably 
he is not guilty of perjury, but he certainly is of partisanship and 
rank injustice. Judge Jennings, Pugh’s brother-in-law, knew these 
facts, for they were called to his attention and mentioned by him in 
liis opinion. 


Sections 707 and 708 of the Act of Congress entitled “An Act 
making further provision' for a civil government for Alaska, and for 
other purposes,” 31 Stat. L. 321 (444) provide (italics mine): 

“Sec. 707. A judicial officer is a person authorized to act as 
a judge in a court of justice. Such officer shall not act cis such 
in a court of which he is a member in any of the following cases: 

First. In an action or proceeding to which he is a party, or in 
which he is directly interested; 

Second. When he was not present and sitting as a member of 
the court at the hearing of a matter submitted for its decision; 

Third. When he is^ related to either party hy consanguinity or 
affinity within the third degree; 

Fourth. AVhen he has been an attorney in the actif)n or proceed¬ 
ing in (juestion for either party. 

But this section does not apply to an application to change the 
place of trial or the regulation of the order of business in court. 
In the cases specified in subdivisions three and four tlie disciualifica- 
tion may be waived by the parties, and shall be deemed to be waived 
unless an application be made as provided in this code ” 

“Sec. 708. Whenever it appears that the .judge of’the di.strict 
court presiding in the division where the action is iicnding is dis¬ 
qualified under the provisions of the section last preceding the action 
shall be tranrferred to another division of said court unless a judge 
of another division will appear and preside .luring the disposition 
thereof; 1 rovided, however, That the parties may by written stipul¬ 
ation agree upon a member of the bar of said court to try the same ” 


35 


It does not need argument or the citation of other authorities to 
show tliat Judge Jennings violated both the law and the ethics of the 
legal i)rofession in hearing the case of Sulzer u. The Canvassing Board, 
* ^ * aiid John P. Pugh, defendants, in the face of tliese two 

sections of the laws of Congress. But when, in connection therewith, 
he knew of the activity and bias, the venality and partisanship of his 
brother-in-law Pugh, his action in hearing the case cannot be con- 
<loned. 

Judge eTennings knew the law, and he knew that Pugh was his 
brother-in-law. He knew that Pugh had approved the canvass and 
i‘omi)ilation ol‘ the challeng(‘d precincts and knew that he subsequently 
made the sworn answer declaring the illegality of what he had prev¬ 
iously declared legal under his oath of office. He knew that Pugh 
was a partisan of Sulzer, and he knew that neither Sulzer nor Pugh, 
nor Sulzer’s attorneys, would (dialhuige the judge’s disqualification, 
but would rely upon the relationship and the (wident bias of both to 
gain an uncons(U()nable advantage against (k)ntestant who was not 
l)resent, nor a party to the suit. Jennings knew that he was dis¬ 
qualified by section 708 and knew that it was his duty under his oath 
of office to suggest his own disqualification and call in either another 
judge or a stipulated member of the bar to try the case. ITis action in 
trying the case under the circumstanc(‘s is in keeping with his arbitrary 
and pai-tisaii conduct all tln*ough the case. Is there a membei* of this 
(7)imnittee who believes that an h()n(‘st man or an unbiased judge would 
so violate the plain provisions of the statutes of the [Tnited States? 

(5) NO MANDAiMUS ACxAINST A GOVERNOR. 

A pi'oper and timely suggestion was made to Judge Jennings that 
he had no jurisdiction or authority to issue a coercive writ of mandate 
against the Governor of Alaska. It was poijffed out to him that Con¬ 
gress in the performance of its (constitutional duty and power to govern 
the Territory had imposed su|)reme (executive authority upon the gov¬ 
ernor, and had not authorized any (‘(nirt to control or limit that 
authority. No court can control or limit the Pr(‘sident of the United 
States in the performance of his constitutional duties; no State couiM 
can control or limit the Governor of a State in the performance of his 
constitutional dutic^s, so no teri'itorial court can control or limit the 
Governor of the Territory of Alaska, in tlu* [)erformanee of the duties 
imposed upon him by the Organic A('ts of Congress. No doubt Con¬ 
gress might thus limit the power of the Governor in that respect, but 
it has not done so. On the contrary it has specially imposed supreme 


36 


executive authority upon liiiii, generally, and also as a member of 
tlie Territorial (yaiivassing Board. 

Section 2 of the Act of Cou^tcss entith'd. ‘A\n Act providiiijsj a civil 
government for Alaska,” ap])roved ]\Iay 17, 1884, 23 Stat. L. 24, 
provides: 

‘‘Sec. 2. That there shall he appointed for the said district a 
governor, who shall reside therein during his term of office and be 
charged with the interests of the United States Government that 
may arise within said district. 

“To the end aforesaid he shall have authority to see that the 
laws enacted for said district are enfon'cd, and to recpiire the 
faithful discharge of their duties ])y the officials a])pointed to 
administer the same. 

And he shall x^erform generally in and over said district such 
acts as x)eUain to the office of governor of a Territory, so far as 
the same may he made or become applical)le thereto.’’ 

Here, then, is the supreme executive authority of the Territory; no 
statutory authority is given to any ('ourt in Alt^ska to control or limit 
him in the i)erfornian('e of that (^)nstitutional or organic power, and 
unless Congress does imx)Ose such xxnyer on sonie court it does m^t 
possess it. 

The Canvassing Boai'd created by Congress to canvass and com¬ 
pile election'returns for l)(4egate to C()ngr(‘ss from Alaska was created 
and its duties inipos(‘d by section 12 of the Act of (k)ngress of i\lay 7, 
1906, providing for the election of l)(*legat(i. 

“Sec. 12. That the governor, the surveyor general, and the 
collector of customs for Alaska shall constitute a canvassing hoard 
for the Territory of Alaska to ca)ivass and compile in writing the 
vote specified in the certificates of election returned to the governor 
from all the several election precincts as aforesaid.” 

No statutoiy authority is given to any court created by Congress in 
Alaska, or elsewhere, to control or limit the action of these officials, and 
the rule of law then is that their action cannot be so controlled or 
limited. 

High, in Extraordinary Legal Rcmiedies (3d Ed. Sec. 120), after 
citing the authorities, concludes, 

“The chief executive of the State is, as to the performance of 
any and all official duties, (mtirely removed from the control of the 
courts, and that he is beyond the reach of mandamus, not only as 
to duties of a strictly executive or political nature, but even as to 
purely ministerial acts whose performance the legislature may have 
required at his hands.” 


37 


Judge Cooley, in delivering the opinion of the Supreme Court of 
i\Ii(diigan, in Sutherland v. Governor, 29 iMieh. 320, 18 Am. Rep. 8!), 
rails attention to the practical difficulties of distinguishing between 
political and ministerial duties, and says: 

‘‘But when duties are imposed upon the Governor, whatever be 
their grade, importance or nature, we doubt the right of the courts 
to say that this or that duty might properly have been imposed 
upon a Secretary of State, or sheriff of a county or other inferior 
officer, and that inasmuch as in case it had been so imposed, there 
would have been a judicial remedy for neglect to perform it, there¬ 
fore there must be the like remedy when the Governor himself is 
guilty of a similar neglect. The ap[)ortionment of power, autliority, 
and duty to the Governor is eitlu'i* made by the people in the 
(h)nstitution, or by the liegislature in making.laws under it; and 
the courts, when ai)portionment has been made, would be pre¬ 
sumptions if they should assume to declare that a particular duty 
assigned to the Governor is not essentially executive, but is.of such 
inferior grade and importance as properly to pertain to some 
inferior office, and conse(piently for the purposes of tluur jurisdic¬ 
tion, the courts may, treat it precisely as if an inferior officer had 
Ixxm required to perform it. To do this would be not only to 
(piestion the wisdom of the Constitution or the law, but also to as¬ 
sert a right to make the Governor the passive instrument of the 
judiciary in executing its mandates within the sphere of his own 
duties. Were the courts to go so far, they would bi*eak away from 
thos(‘ {'hecks and balances of government which were meant to be 
checks of co-operati(m, and not of antagonism oi* mastery, and 
would concentrate in their own hands something at least of the 
power which the people either direc'tly or by the action of their 
repn^semtatives decided to entrust to the otlier depai*tments of the 
government.” 

The case of Iluidekoper v. IIadh\v, 177 Fed. 1, was brought by the 
plaintift against Governor lladhyy, and others, comprising the Goaid of 
hhpialization of the State of IMissouri, to compel them, by mandamus, to 
perform a minisbuaal duty. The United States Circuit Court of Ap¬ 
peals, Eighth Circuit, after citing llighc and ('ooley, as above (piotc'd, 
pr’oceeded: 

“In State ex rel. v. Stone, 120 Mo. 428, 25 S. W. 376, 23 U. R. A. 
194, 41 Am. St. Rep. 705, the Supreme Court of Missouri cite'd and 
considered the numerous authorities relating to this subject and 
stated the following conclusion: 

“Abundant authority establishes the positioii here taken that 
mandamus will not issue to the Governor to ('omped the jxuvformance 
of-any duty pertaining to his office, whether political or merely 
ministerial; whether commanded by the Constitution or by some 
law passed on the subject. 


38 


“Tilis doctrine was afterwards affirmed in ttie later case of State 
ex rel v. Meier, 143 Mo. 439, 45 S. \V., 30(). Whetlier, therefore, 
the duty imposed upon the Governor of Missouri to act as a mem¬ 
ber of the State Board of Equalization is ministerial, executive, or 
political in its character, he is not, according to the law of this 
State as interpreted by its highest judicial tribunal, responsible to 
the judiciary for his action. The high sense of duty which must 
be presumed to actuate the chief executive of a state is the sole 
arbiter to which appeal can be made in such matters.^’ 

Iluidekoper v. Hadley, 177 Fed. 1 (12). 

And the same rule prevails in Colorado. 

‘‘The State Board of Canvassers, composed of the five highest 
state executive officers, in the exercise of its i)ower in canvassing 
election returns for the election of representatives in the General 
Assembly, prescribed by 1. Mills Ann. Stat. Sec. 1631, discharges 
duties purely political and governmental in character, and hence 
its action cannot be controlled by inandamus. ” 

Orman v. People (Colo.) 71 Pac. 430. 

And in Maine, Dennett, Petitioner, 32 Maine 508, 54 Am. Dec, 602. 
The cases of State v. Huston, (Okla.) 113 Pac. 190; State v. Stone (Mo.) 
25 S. W. 376; State ex rel Latture v. Frazier (Tenn.) 86 S. W. 319, 
and Pice v. Austin, 19 Minn. 103, 18 Am. Dee. 330, are all to the 
same i)()int, and ('ontain full citations of authorities showing it to be 
the general rule that the Governor cannot be in any wise controlled or 
limited in his executive duties by mandamus. 

While not fully admitting the force of the rub' Judge Jennings evaded 
it by declaring that whether he had authority to cocmce the Governor by 
mandamus he might safely issue his writ against the other two members 
of the Board and control their action. There is a good answer to that 
twist, and it is that Pugh, one of the other members is Jennings brother- 
in-law and as to him Jennings is dis(iualified by section 708 of the 
Organic A('t of June 6, 1900, heretofore adverted to. 

It follows, that the court had no jurisdiction by mandamus to coerce 
the Governor, and was disqualified by section 708 to hear the case against 
Pugh, his brother-in-law. And in the case of Dispat<4i r. Davidson, 4 
.\laska, 727, he had ])reviously refused to grant a mandamus against the 
third menil)ei* of that board, upon a much stronger stat(‘ment of facts. 

(6) RETiATOR’S CAUSE OF ACTIOX. 

The suit was entitled “The Teri-itoiy of Alaska on the relation of 
Charles A. Sulzer, and Charles A. Sulzer, relator and plaintiff, rs. The 
Canvassing Board of the Territory of Alaska, consisting of J. F. A. 


39 


Strong, Charles E. Davidson, and John P. Pugh, defendants,’’ and was 
filed March 2, 1917, in the District Court for the District of Alaska, 
Division No. 1 Juneau, and it was nuiul)crcd ir)92-A therein. 

Relator alleges his candidacy for tlu' office of Delegate in the No¬ 
vember 191b election, and that Lena Morrow Lewis and James Wicker- 
sham were also candidates; that Strong, Governor, Davidson, Surveyor 
General, and Pugh, Collector of Customs constitute the Canvassing 
Board; alleges that he received the grcat(;st number of legal votes at 
the election, but that the Canvassing Board i-(‘fuscd to issue the certifi- 
('ate to relation, but threatened and aniiouiicc'd their intention to court 
and canvass certain votes from Choggiuiig, Dcering, Nizina, Nushagak, 
rtii'a, Bonnifield, and Vault precincts, which he alleg(‘d to be false and • 
spurious (italics mine) :— 

“In that the voters existing said ballots failed to use the form of 
official ballot prescribed by the laws of Alaska, and failed to use 
the official ballots prepared for said election according to the laws 
of Alaska, but on the contrary, in casting said votes, used a form of 
ballot either prepares] by the voters themselves, or by some person 
other than the person or persons authorized by law to prepare and 
provide said ballots.” 

“XL 

“That the laws of Alaska provide as follows: “Pliat in any 
precinct where the election has been legally called, and no official 
ballots have been received, the volevs are pennitted to write or 
print their baltots, but the judges of election, shall, in this event, 
certify to the facts which i)revented the use of the official ballots, 
which certificate must accompany and be made a i)art of the elec¬ 
tion returns.’ ” 

The foregoing paragraphs from his petition contain the gravamen of 
the charge upon which petitioner demands judgment—that the electors 
in six pre('in(‘ts voted the Congressional b^i’iu of ballot for Delegate from 
Alaska instead of the form })rescribed by the Territorial Legislature. 
There was no charge of fraud or wrongdoing on the part of the electors 
or the election officers; it is admitted that the voters cast the ballots in 
good faith, that they were i)ropei‘ly (pialified, and that the territorial law 
itself ])rovided for that form of ballot if the Territorial form failed to 
reach the polling place. But, the charge is, that no certificate of the 
election judges in six of said precincts accompanied the returns certify¬ 
ing to the fac'ts whi(di prevented the use of the Territorial form of bal¬ 
lots. 

That’s all! It is admitted, because not denied anyw9iere in the plead¬ 
ings, that in each of said precincts the election w^as legally called, that 


40 


the electors were entitled to and did vote according to both the Congres¬ 
sional and Territorial law, that they voted legal ballots under both the 
law of Congress and the Territorial Ijegislatnre, but the election judges 
did not make and enclose with the returns a certificate stating the 
facts which prevented the voters from casting the first form of ballot 
prescribed by the Territorial Legislature, instead of the second fonii 
prescribed by both the Territorial Legislature and the laws of Congress. 

A second charge is made that in the Vault precinct ‘‘said returns 
are not certified to as provided by law, and in that, no certificate of the 
result of the election in said precinct, specifying the number of votes 
cast for each candidate accompani(‘d or was included in said returns, as 
recpiired by Section 402 of the Compiled Laws of Alaska.” No charge 
of fraud or Avrongdoing, except that the election officer failed to include 
a form of statement of result Avith the returns. It is admitted that 
the election Avas legal, the voters cast legal ballots, no one attemjAted to 
defraud the relator, just an alleged failure in an immaterial matter to 
folloAv the strict rule in making the returns! 

The petition then contains the allegation that if the returns from said 
challenged ])recincts are counted the vote for James AVickersham Avill be 
()4f)0 and the total vote for relator Sulzer Avill be only 6459; that the 
Canvassing Hoard thi'eatens to count the said votes from the challenged 
{)recincts, and threatens 

“and intend, and Avill, uidess restrained by this Honorable Court 
issue a certificate of election to the said James Wickersham, based 
upon said false compilation of Amtes, notAvithstanding that your 
relator and plaintiff herein received the highest number of Amtes 
cast at said election, and is entitled to said certificate of election.” 

Here, then, is a solemn admission of the truth by the relator that if the 
offii'ial returns are counted this contestant Avill have 6490 votes and be 
(dected and the relator only 6459 votes and be defeated. 

The next and final allegation in relator Sulzer’s petition clearly 
demonstrates the character of the controversy, sIioavs that it Avas in¬ 
tended to deprive this contestant of his right to the certificate of elec¬ 
tion and to do it Avithout notice to him or any opportunity to defend his 
interest; the allegation is 

“That plaintiff and relator has no plain, speedy, or adequate 
remedy in the ordinary course of the law, and Avill be deprived of 
a certificate of election entitling him to the office of Delegate to 
Congress for the Territory of Alaska, unless this court issues this 
return of mandate, compelling the said canvassing board to reject 
and not count the returns from each and all 6i the foregoing pre- 


41 


cincts hereinbefore enumerated, and compelling said canvassing 
board to issue to the relator and plaintiff herein, its certificate 
certifying that he was duly and regularly elected to said office of 
Delegate to Congress.” 

In short, it is alleged that the Canvassing Board had already found 
and declared from the canvass and compilation of all the returns in the 
territoiy that Wickersham, the contestant, had 6490 votes and the 
relator, Sulzer, 6459 votes and the Canvassing Board upon this official 
canvass will issue the certificate of election to Wickersham unless the 
court shall compel the Canvassing Board to reject the six challenged 
precincts and compel the Board to issue the certificate of election to 
Sulzer; and this the court is asked to do by its peremptory mandamus 
without permitting Wickersham to be made a party to the suit or give 
him any opportunity to present his claim or defend his right which was 
superior to that of Sulzer, because he had thirty-one more votes in the 
final canvass and compilation than Sulzer had. 

(7) AX xVRBITRARY DECISION. 

The petition in this case confined the issue to the precincts of Chog- 
giung, Nushagak, Deering, Utica, Bonnifield, Vault, and Xizina. The 
last mentioned precinct was finally dropped out because no possible evi¬ 
dence could be found in the record or the pleadings upon which to 
reject it. The final decree went only to the six precincts remaining. It 
appears from the record that iMr. John Rustgard, an attorney residing 
at Juneau, was invited by Judge Jennings to file a brief in the case in 
the absence of any attorney for the defendant, the Canvassing Board. 
In his recapitulation, at the end of his opinion the judge said: 

‘‘It is suggested by ]\Ir. Rustgard that if the court had before it 
the returns from all the precincts in Alaska it might appear that 
there were defects in the returns from other precincts, sufficient in 
gravity and number to turn the results obtained if the ballots (?) 
in the precincts discussed herein were rejected. * 

“This, of course, is possible, but the pleadings disclose nothing 
of that nature. On the contrary, the answers allege that counting 
the precincts heretofore adverted to Wickersham has 6490 votes, and 
Sulzer has 6459; that the Canvassing Board has finished the canvass 
of all votes and was about to issue a certificate of election to Wicker¬ 
sham when the alternative writ was served upon them. 

“It is obvious that if the votes be rejected which the Court has 
decided should be rejected Wickersham’s 6490 will suffer a diminu¬ 
tion of 69, leaving him only 6421, and Sulzer’s 6459 will suffer a 
diminution of 19, leaving him 6440—in which event the certificate 
of election should go not to Wickersham but to Sulzer. 

“The demurrer will be sustained.” 


42 


And this judge in a court of justice thereupon refused to consider any 
other returns in the Territory of Alaska, although the same defects 
actually existed in some of them as existed in the six precincts rejected, 
because he well knew if the same rule of law was applied to them which 
he applied to the six precincts the results would be to throw out pre¬ 
cincts in which Sulzer had a majority and thereby reduce Sulzer’s vote, 
and leave Wickersham the certificate of election. 

After the judge had renderd his opinion and refused to extend the 
uniform rule to all the precincts in Alaska, Mr. Emery Valentine, a 
public spirited citizen, on March 21st filed a protest with the canvass¬ 
ing board against canvassing and compiling the returns from other 
precincts where similar defects to those in the six precincts considered 
also existed. The Board filed that protest in Judge Jenning’s court and 
asked his opinion as to their duty. In a remarkable letter, addressed to 
the Board, dated March 22d, the judge referred to this matter of ad¬ 
ditional precincts and defects therein at some length, but advised the 
Board that it had declared in its answer 

“That the Territorial Canvassing Board did, on the first day of 
March, 1917, complete its canvass and compilation of the returns,” 
etc. * * * “Now you state in your communication to me that 

some private citizen has lately entered a protest of some kind and 
that there are some irregularities which have not entered into the 
case that has been heard before me, and on which I issued the 
alternative writ, and you ask my advice as to what you should do.” 

The court did nothing but close the ear of justice and honesty to the 
suggestion until he signed the peremptory writ and in that writ he 
effectually prohibited the Canvassing Board from applying the same 
rule of law announced by him as applicable to the six precincts to other 
precincts where the same defects existed, by this clause in his Writ of 
Mandamus: 

“Whereas, the court doth further find that with the exception of 
making the deduction aforesaid and of issuing said certificate said 
Board has completed the canvass.’^ 

He thereby prohibited the Canvassing Board from amending their 
canvass and compilation of the returns by applying his own ruling on 
the law relating to the six rejected precincts to other precincts where the 
same defects existed. And Judge Jennings made that unauthorized 
order because he well knew that if his announced rule of law was so ap¬ 
plied to other precincts, just declared and enforced in the six precincts 
rejected, it would result in rejecting returns from precincts where 
Sulzer had large majorities, and thus defeat him and seat Wickersham. 


43 


His action in making that order was not only not within the pleadings or 
the demand for the relief prayed for, but it is an exhibition of partisan 
politics never before known in American courts. 

Before Judge Jennings signed his decree he was also advised that the 
Canvassing Board might relieve itself of responsibility for the overturn¬ 
ing of an honest American election by stating in the certificate issued to 
Sulzer the fact that it was so issued pursuant to the peremptory Writ of 
Mandamus issued by the court. To obviate that honest statement of 
fact he added to his mandate this clause (italics official) : 

* # # “and that you issue a certificate of election to Charles 

A. Sulzer as having received the greatest number of votes for Dele¬ 
gate to Congress from Alaska, and that said certificate be in the 
visual form, as by law provided.” 

In the minutes of the meeting of the Canvassing Board held on March 
24th, in pursuance to the mandate the above clause was read, and the 
Governor said: 

“Governor. The law provides no form of certificate and never 
has. The certificate we have used has been simply one drawn up 
by this office. 

“Governor. The purpose of the meeting has been stated, what 
do you want to do about it? 

“Mr. Pugh. I move that we start to take off the tally sheets the 
vote for Delegate as indicated in the writ, namely: Choggiung, 
Deering, Nushagak, Utica, Bonnifield, Vault. 

“Mr. Davidson. Motion seconded. 

“Governor. It has been regularly moved and seconded that the 
tally sheets should be corrected to comply with the command of the 
court, that is: the votes so far as Delegate be eliminated: 

“69 votes should be deducted from Jas. Wickersham. 

“19 votes should be deducted from Chas. A. Sulzer. 

‘ ‘ Mr. Pugh. I move that we issue certificate in the same form as 
we did two years ago. 

“Mr. Davidson. Motion seconded. 

“Governor. It has been regularly moved and seconded that 
this Board do therefore issue a certificate of election to Charles A. 
Sulzer in accordance with the above peremptory Writ of Mandamus, 
and that also in accordance with the aforesaid Writ of Mandamus, 
the certificate be issued in the usual form.” 

“Governor. It had better be stated that while the Writ declares 
that the certificate be in the usual form as by law provided, the law 
provides for no form. The form heretofore used has been one that 
was provided by the Canvassing Board. 

“(Governor. All in favor of the motion say aye. 

“Motion unanimously carried.” 

Judge Jennings well knew, of course, that if the Canvassing Board 


44 


stated the facts on the face of the certificate of election that it was 
issued in pursuance of the mandate of the court, and not by the 
Canvassing Board in the exercise of its jurisdiction under the United 
States statute, it might result in the House of representatives sending 
the matter to the election committee at once, even before Sulzer could 
be sworn in, and to prevent that Judge Jennings made the order that 
the certificate be in the “usual form,” and do not recite the facts. A 
decree or a document which dare not recite the truth ought not to 
emenate from a court of justice^—and never does. 

(8) MANDAMUS AGAINST THE BOARD. 

In his petition, relator alleges he has no plain, speedy or adequate 
remedy and prays for mandamus to compel the canvassing board to re¬ 
ject the returns from six specified precincts and for a restraining order 
pending final decree. 

In the Alaska case of Interstate Com. Com. v. Humboldt Steamship 
Co., 224 U. S. 474, the Supreme Court of the United States has clearly 
stated the rule which must govern this class of cases: 

“The general principle which controls the issue of a writ of 
mandamus is familiar. It can be issued to direct the performance 
of a ministerial act, but not to control discretion. It may be dir¬ 
ected against a tribunal or one who acts in a judicial capacity to 
require it or him to proceed, the manner of doing so being left to 
its or his discretion. * * * if it absolutely refuse to act, 

deny its power, from a misimderstanding of the law, it cannot be 
said to exercise discretion.’’ 

In that case the Interstate Commerce Commission refused to act, 
denied its power and jurisdiction and refused to move; the court held 
mandamus might issue to compel it to move, “the manner of doing so 
being left to its or his direction.” 

Interstate Com. Com. v. Humboldt, 224 U. S. 474. 

McCrary on Elections, 4th Ed. lays down the same rule in respect to 
mandamus in election cases: 

“Sec. 377. Where the law creates a board of canvassers with 
power to determine from the returns who is elected representative 
in Congress, the only remedy open to a person aggrieved by the de¬ 
cision of such board is by a contest before the House of Representa¬ 
tives. Mandamus is not available in such a case.” 

O’Hara -r. Powell, 80 N. C. 103. 

Wheeler v. Board Canvassers, 94 Mich. 447. 

“See. 385. The court will not undertake to decide upon the 


45 


right of a party to hold a seat in the legislature, where by the 
Constitution each House is made the judge of the election and 
cpialifications of its own members; but court may by mandamus, 
compel the proper certifying officers to discharge their duties and 
arm the parties elected to such legislative body with the credentials 
necessary to enable them to assert their rights before the proper 
tribunal. And, inasmuch as canvassing and returning officers act 
ministerially, and have no power to go behind the returns, or inquire 
into the legality of votes cast and returned, a court will by 
mandamus compel them to declare and certify the result as shown 
hy the returns, because that is their plain duty, but the award of a 
, certificate of election under such mandate will not conclude the 
legislative body in determining the election. 

'' Sec. 386. ^ ^ that such a court has 

no power to try a contested election even where the statute has pro¬ 
vided no mode of contesting. And the same court has held that a 
writ of injmiction issued to restrain the officers of an election from 
holding an election, or to restrain a board of canvassers from can¬ 
vassing the returns of an election, and declaring the result, is 
absolutely void for want of power in the court, and that such of¬ 
ficers cannot be punished for disobedience thereto. The doctrine 
announced is that courts of equity have no inherent power to try 
contested elections, and can only exercise such power where it has 
been conferred by express enactment, or necessary implication 
therefrom. 

‘SSec. 387. It has been held as already seen (Sec. 370) that a 
court of chancery should not interfere by injunction to restrain 
the officers of election from counting illegal votes, or from issuing 
certificates of election to persons not entitled to them. The reason 
is that a court of chancery will not interfere collaterally and in. 
advance of a contest to pass upon the claims of conflicting claimants 
of an office. 

“Sec. 411. The rule is that mandamus will lie to compel election 
officers to discharge purely ministerial functions as contradistin- 
quished from such duties as are quasi judicial in their character. 
The duties of returning officers are purely ministerial, but in the 
nature of the case they must exercise a sort of judicial function in 
determining whether the papers received by them and purporting 
to be returns are in fact such, and are genuine and intelligible and 
substantially as required by law. But after these questions are 
determined, the duty of counting the votes as returned, and de¬ 
claring the result, is a ministerial duty which the proper officers are 
bound to perform, and the performance of which may be compelled 
by mandamus. And it is not doubted that even as to questions con¬ 
cerning which returning officers exercise a discretion, they can be 
compelled by mandamus to act and to decide, though their discretion 
cannot be controlled by this means, and they cannot, therefore, be 
directed by mandamus as to how they shall decide. If they decide 


46 


any such questions wrongfully or erroneously, the party injured 
has his remedy by quo warranto or by such other form of remedy 
as may be provided by statute. 

‘‘Sec. 416. And of course, it will be understood from what has 
already been stated, that where, as is sometimes the case, large 
judicial powers are conferred by law upon canvassing boards, 
mandamus will not lie to direct or control them in the exercise of 
their judicial or discretionary functions. It must be constantly 
borne in mind that the office of this writ is to compel the per¬ 
formance of acts which are purely ministerial in their nature, 
though it may, as we have said, be employed to compel, but not to 
control, the exercise of judicial functions. This rule being kept in 
view, no serious difficulty can arise upon this subject. 

“Sec. 423. We gather from all the authorities the following 
rules: 

1. If the officers of election refuse or fail to act, mandamus will 
compel them to discharge their duties as required by statute; but 
in such cases the writ will not, as a general rule, command such of¬ 
ficers to certify that any particular person has been elected. 

2. If there are two or more persons claiming the office, the writ 
will never issue to require such officers to declare either one elected, 
but only to comand them to execute the duties and exercise the 
functions conferred upon them by law. 

3. If it clearly appears that a particular person has received the 
majority of the votes cast, and that no question is made upon this 
point, perhaps mandamus may issue to compel such officers to 
certify the election of that person by name, although this is sub¬ 
stantially the same thing as to order them to certify the result ac¬ 
cording to law,'and therefore the latter form vdll always be found 
to be the best. 

IMcCrary on Elections, 4th Ed. Secs. 377-423. 

“It is an elementary rule that a writ of mandamus may be used 
to require an inferior court to decide a matter within its jurisdic¬ 
tion and pending before it for judicial determination, but not to 
control decision. Ex parte Flippin, 94 U. S. 350; ex parte Rail¬ 
way Co., 101 U. S. 720; ex parte Burtis, 103, U. S. 238.” 

Ex parte Morgan, 114 U. S. 174, 175. 

In the case of Interstate Commerce Commission v. Humboldt Steam¬ 
ship Co., 224 U. S. 474, heretofore cited, the court concluded: 

“In the case at bar the Commission refused to proceed at all, 
though the law required it to do so; and to so do as required—that 
is, to take jurisdiction, not in what matter to exercise it—is the ef¬ 
fect of the decree of the Court of Appeals, the order of the court 
being that a peremptory writ of mandamus be issued directing the 
Commission ‘to take jurisdiction of said cause and proceed therein 
as by law required. ’ In other words, to proceed to the merits of the 


47 


controversy, at which point the Commission stopped because it was 
‘constrained to hold,’ as it said ‘upon authority of the decision 
recently announced in In the ]\Iatter of Jurisdiction over Rail and 
Water Carriers Operating in Alaska, 19 I. C. C. Rep. 81, that the 
Commission is without jurisdiction to make the order sought by 
complainant,’ the steamship company,” 

And that was the limit of the power of the court, if it had jurisdiction 
at all, in the case of Sulzer v. The Canvassing Board. The court had 
no authority or jurisdiction in mandamus to do more than compel the 
Canvassing Board “to take jurisdiction of said cause and proceed therein 
as by law required.” The Supreme Court of the United States stops 
at that point, and the authorities are unanimous that the jurisdiction of 
every other court can not go beyond it, and by a writ of mandamus try 
the case, and compel the court’s judgment on the trial to be entered as 
that of the canvassing board itself, as was done in this case. 

And now I appeal from Phillip drunk to Phillip sober’; from the judge 
filled with the passion of politics to the same judge controlled by his own 
better and sober judgment. As judge of the district court of Alaska he 
has written two opinions on the principle which governs in mandamus 
against public officials; the Surveyor General Davidson was defendant in 
both cases. So the Committee and House may have a better view of 
the contrast between these two opinions they are here printed in paralell 
columns: 


Dispatch Pub. Go. v. Davidson. 

4 Alaska 727. 

‘'Jennings, District Judge. 
Will a mandamus lie in this 
case? I think not. 

Speaking of the writ of nian- 
daimus, the law of Alaska pro¬ 
vides as follows: 

‘It may be issued to any infe¬ 
rior court, corporation, board, 
officer, or person, to compel the 
performance of an act which 
tlie law specially enjoins as a 
duty resulting from an office, 
trust, or station. But though the 
writ may require such court, 
corporation, board, officer, or 
person to exercise its or his 
judgment, or proceed to the dis¬ 
charge of any of its or liis func¬ 
tions, it shall not conlrol judi- 


Sulzer V. The Canvassing Board, 
In the Record. 

“Jennings. District Judge. 
This is a proceeding by man¬ 
damus to compel the Canvassing 
Board, consisting of J. F. A. 
Strong (Governor), Charles E. 
Davidson (Surveyor General), 
and John F. Pugh (Collector of 
Customs), of the district of 
Alaska, to reject—i. e.—not 
count the votes or alleged votes 
from certain precincts for the 
office of Delegate in Congress 
from Alaska, aiid to issue to 
Charles A. Sulzer, a certificate of 
election to said office.” 

★ Hi * * * * 

“To recapitulate then, the 
Ganvassing Board must not 
count tlie returns from Ghog- 


48 


cial discretion. The writ shall 
not be issued in any case where 
there is a plain, speedy, and ade¬ 
quate remedy in the ordinary 
course of the law. Comp. Laws 
1913. Sec. 1385; Garter’s Code, 
Sec. 553. p. 261.’ 

"Our statute is taken bodily 
from that of Oregon, passed 
October 11. 1862. In the case 
of Ball V. Lappius, 3 Or. 56, it 
was said by the Oregon court, 
in 1868, speaking of the writ of 
mandamus: 

Tt may require the officer to 
proceed to the discharge of any 
of his functions, although sucii 
discharge involves an exercise 
of discretion and judgment, and 
a choice between different modes 
of proceeding; yet it ‘shall not 
control judicial discretion.’ And 
it is safe to go further, and say 
it shall not control discretion, 
judicial or otherwise, which the 
Jaw assigns to an officer. * * * 
In such case the office of the 
writ is to compel the officer to 
act. The mode of action is 
still to be determined by him in 
whom the law has lodged the 
discretionary power. In deter¬ 
mining on the necessity and pro¬ 
priety of the writ, it must be 
observed: (1) Mandamus is 
proper only where a party has 
a legal right, and ihere is no 
other legal remedy; * * * (2) 
The right must be certain and 
clearly made out by ttie facts of 
the case.” 

“And in Durham v. Monu¬ 
mental S. & M. Go,, 9 Or. 44. the 
same court said, in 1880: 

‘The law “provides that the 
writ shall not be issued in any 
case where there is a plain, 
speedy, and adequate remedy at 
law. The existence or nonexist- 


giung, Nushagak, Bonnifield, 
Utica, Deering or Vault. These 
precincts total WTckersham 69, 
Sulzer 19. 

"It is suggested by Mr. Rust- 
gard that if the Gourt had before 
it tlie returns from all the pre¬ 
cincts in Alaska it might appear 
that there were defects in the re¬ 
turns from other precincts, suffi¬ 
cient in gravity and number to 
(urn the result obtained if the 
ballots (?) in the precincts dis¬ 
cussed herein, were rejected. 

"Tliis, of course, is possible 
but the pleadings disclose noth¬ 
ing of that nature. On the con- 
ti*ary the answers allege that 
counting the ])recincts hereto¬ 
fore adverted to Wickersham 
has 6490 votes, and Sulzer has 
()459: tliat tlie Ganvassing Board 
has finislied the canvass of all 
votes and was about to issue a 
certificate of election to MTcker- 
sham wlieu the alternative writ 
was sei*v(‘d upon them. 

"It is obvious that if the votes 
he rejected \^4iich the Gourt has 
d(‘cided should be rejected, 
Wickersham’s 6490 will suffer a 
diminution of 69, leaving him 
only 6421. and Sulzer’s 6459 will 
suffer a diminution of 19. leav¬ 
ing him 6440—in whicli event 
the certificate of election should 
go not to MTckersham but to 
Sulzer. 

"The demurrer will be sus- 
taiiK'd.” 

“Judge’s Ghambers, 
Juneau. March 22, 1917. 
lion. J. F. A. Strong, Governor, 
and Hon. Gharles E. Davidson, 
Surveyor General, of the Ter¬ 
ritory of Alaska, Juneau, 
Alaska. 

“Gentlemen: 

At your reipiest, as I am in- 


49 


<ence of an adequate and specific 
remedy at law under the ordi¬ 
nary forms of legal procedure is 
therefore one of the first ques¬ 
tions to be determined in all ap¬ 
plications for the writ of man¬ 
damus; and wherever it is found 
that such remedy exists, and 
that it is open to the party ag¬ 
grieved. the courts uniformly 
refused to interfere by the exer¬ 
cise of this extraordinary juris¬ 
diction.’ 

“It will be noted that in the 
Oregon case first cited the court 
says that ht is safe to go further 
and say it shall not control dis¬ 
cretion, judicial or otherwise.’ 

‘‘In United States v. Black, 
128 U. S. 40, 9 Sup. Ct. 12, 32, 
L. Ed. 354. which was an appli¬ 
cation to the Supreme Court of 
the District of Columbia for a 
writ of mandamus commanding 
the Commissioner of Pensions 
to grant an increase of ])ension, 
the petitioner averred that the 
fact was that he was so disabled 
that he was entitled to this in¬ 
crease under the acts of Con¬ 
gress, and that the Commis¬ 
sioner had so found the fact to 
be, but had erroneously held 
that under the law he was not 
entitled to it. and for that rea¬ 
son he refused to allow it. In 
deciding the case against allow¬ 
ance of the writ, Mr. Justice 
Bradley said: 

‘The principle of law deduci- 
ble * * * is not difficult to 

announce. The court will not 
interfere by mandamus with 
the executive officers * * * in 
the exercise of their ordinary 
official duties, even where those 
duties require an interpretation 
of the law, the court having no 
appelate power for that pur- 


formed, the Clerk of this court 
has brought to my attention a 
certain communication signed 
by you, in which you state that 
a protest has been filed with the 
Canvassing Board by Mr. Emery 
Valentine of this city, suggest- 
iilg the rejection of the votes of 
certain precincts cast at the last 
election for Delegate to Con¬ 
gress, and in which you state 
that the ‘Board begs to submit 
the protest herein referred to 
and respectfully asks to be in¬ 
structed as to what disposition 
the said Board should make of 
said protest,’ and in reply I have 
to state: 

★ ★★★★★ 

“The above entitled cause is 
a proceeding brought in this 
Court for the issuance of a man¬ 
damus compelling you tO' reject 
—i. e. not count the returns from 
certain precincts stated in the 
petition on account of certain 
alleged fatal defects —not irreg¬ 
ularities, but defects—in the re¬ 
turn from said precincts. An 
alternative writ of mandamus 
was issued and served upon you, 
and you were also enjoined 
from issuing the certificate of 
election to James Wickersham.” 

****** 

“It appears that in the 6490 
votes which you have credited 
to James Wickersham, and in 
the 6459 votes credited to Charles 
A. Sulzer, and in the 1346 votes 
credited to Lena Morrow Lewis, 
you counted votes from the pre¬ 
cincts questioned in the petition 
and which the Court has decided 
should be rejected, and in your 
answer you stated that you had 
completed the canvass. 

“In view of the allegations of 
tlie answer and of what Mr. 


50 


pose; but, when they refuse to 
act ill a case at all, * * * a 
mandamus may be issued to 
compel them do do so.’ Judged 
by this rule the present case pre¬ 
sents no difficulty. The Com¬ 
missioner of pensions did not 
refuse to act or decide. He did 
act and decide. He adopted an 
interpretation of the law ad¬ 
verse to the relator.” 

“And he adds: 

AVhether, if the law were 
properly before us, * * * we 
should be of the same opinion, 
or a different opinion, is of no 
consequence in the decision of 
this case.’ ” 

“In Kimberlin v. Commission 
to Five Civilized Tribes, 104 Fed. 
655, 44 C. C. A. 110, Circuit 
Judge Sanborn said: 

‘The writ of mandamus issues 
to compel the performance of a 
plain duty imposed by law. 
\A’here that duty is the exercise 
of judgment or discretion by an 
officer in the decision of a ques¬ 
tion of law or fact, or both, it 
miay issue to compel a decision, 
but it may not command him in 
what parficular way that de¬ 
cision shall be rendered. When 
a question has been decided by 
the officer or person to whose 
judgment the law has intrusted 
its determination, the writ of 
mandamus may not issue to re¬ 
view or reverse that decision, or 
to compel another.’ ” 

“The case of Decatur v. 
Paulding, 14 Pet. 497, 10 L. Ed. 
559, was one in which it was 
argued that ‘the true construc¬ 
tion’ of certain legislation ‘con¬ 
stituted the law of the case,’ and 
that, as the facts were not in dis¬ 
pute, the compliance by the offi¬ 
cer with the law was a mere 


Davidson stated in open court, 
the Court concluded that all 
other questions had been passed 
upon by you and that you had 
indeed completed your ‘canvass 
and compilation’ and ‘that the 
official tally sheets made up by 
the Board were duly totalled and 
checked.’ Now you state in 
your communication to me that 
some private citizen has lately 
entered a protest of some kind 
and that there are some irregu¬ 
larities wliich have not entered 
into the case that lias been heard 
before me, and on which I 
issued the alternative writ, and 
you ask my advice as to what 
you shall do.” 

“Yours very respectfully, 
Robert Jennings, 
Judge.’^ 

“Peremptory Mandamus. 

*•**★★★ 

‘AMiereas, the Court is astis- 
fied that the defendants do not 
desire or intend to show any 
further cause, and doth now 
find from the records and files 
herein that if the total number 
of votes to which the Canvassing 
Board has returned that James 
\ATckersham is entitled to (to- 
wit: 6490) and that Charles A. 
Sulzer is entitled to (to-wit: 
6459) should suffer a reduction 
of 69 and 19 respectively, it will 
clearly appear that Charles A. 
Sulzer has received the greatest 
number of votes for the office of 
Delegate to Congress from Alas¬ 
ka, and that he is entitled to the 
certificate of election therefor; 
and, 

‘‘Whereas, the Court doth fur¬ 
ther find that with the exception 
of making the deduction afore¬ 
said and of issuing said certifi- 


51 


ministerial act, and he had no 
power to exercise his judgment 
or discretion in the construction 
of the act; but Chief Justice 
Taney denied the writ, saying: 

‘The head of an executive de¬ 
partment of the government, in 
the administration of the vari¬ 
ous and important concerns of 
his office, is continually re¬ 
quired to exercise judgment and 
discretion. He must exercise his 
judgment in expounding the 
laws and resolutions of Con¬ 
gress, under which he is re¬ 
quired, from time to time, to 
act.’ 

* ^ * * * * 

“Mandamus denied.” 


cate said Board has completed 
the canvass; and, 

‘'MJiereas, the Court, on mo¬ 
tion of plaintiff this day made 
has issued an order making said 
alternative writ peremptory; 

“Therefore, this is to com¬ 
mand you, and each of you, that 
upon receipt of this writ of man¬ 
damus you do forthwith con¬ 
vene as a Canvassing Board for 
tlie Territory of Alaska, and that 
you reject the votes from said 
precincts of Choggiung, Deer- 
ing, Nushagak, Utica, Bonni- 
field, and Vault, and that you 
issue a certificate of election to 
Charles A. Sulzer as having re¬ 
ceived the greatest number of 
votes for Delegate to Congress 
from Alaska, and that said cer¬ 
tificate be in the usual form, as 
by law provided. 

“And this you are in nowise 
to oimit. 


‘‘Given under my hand and 
the seal of this Court this 23rd 
day of March, 1917. 

(Seal) Bobert W. Jennings, 
Judge” 

It would be impossible in the history of x\merican courts to point 
to a more glaring instance of “Dr. Jekyl and Mr. Hyde” judicial 
pronouncement than is-exhibited in these two opinions of this 
Alaskan judge. In the Dispatch case, where his political rancor 
had no play, he correctly stated the rules which all American courts 
follow: in the Canvassing Board case he violated every such mle, 
and the rule of parties and equity in addition. Contestant in this 
case appeals from the partisan decision in the Canvassing Board 
case to the admittedly correct rule stated in the Dispatch case. 
The Dispatch case is governed by law; the Canvassing Board case 
by power in the hands of a petty politician. 

A mandamus will not be awarded to compel officers to do any 
act which they are not authorized to do by the law from which 
they derive their powers. 


Carroll Co. v. United States, 18 Wall, 71. 


52 


United States v. Clark Go., 95 U. S., 769. 

United States v. Macon Go., 99 U. S., 582. 

Ex parte Rowland, 104 U. S., 604. 

The act of Congress creating the Canvassing Board for Alaska 
specifically limits its authority and power “to canvass and compile 
in writing the vote specified in the certificates of election returned 
to the Governor from all the several election precincts as afore¬ 
said.” Sec. 12, Act May 7, 1906, 34 Stat. L., 169 (173). And even 
if the District Court in Alaska may issue mandamus against the 
Governor and the Board, that is the extent of its power, under the 
universal rule laid down by the Supreme Court of the United States. 
The court could only require them to act—to move on and to can¬ 
vass and compile the whole of the “vote specified in the certificates 
of election returned to the Govrnor from all the several election 
precincts as aforesaid.” The Board’s duties are those of an adding 
machine, and they may be compelled to add, but not to try title 
to the ofiice, to reject returns, and issue a certificate to a defeated 
candidate upon hair-splitting questions of law! 

(9) ANOTHER PLAIN REMEDY AT LAW. 

In his opinion in the case of Dispatch Pub. Go. v. Davidson, 4 
Alaska,-727, Judge Jennings quotes section 1385 of the Compiled 
Laws of x\laska, 1913, authorizing the issue of the writ of man¬ 
damus in specified cases, but the last paragraph of which declares’: 

“The writ shall not be issued in any case where there is a plain, 
speedy, and adequate remedy in the ordinary course of the law.” 

He then stated, correctly, the fact that the Alaska law was taken 
bodily by Congress from the laws of Oregon, which makes the 
prior Oregon decisions binding as the law of the case. He then 
quotes from Oregon cases, the first of which. Ball v. Lappins, 3 
Ore., 56, declared: 

“In sucli case the office of the writ is to compel the officer to act. 
The mode of action is still to be determined by him in whom the 
law has lodged the discretionary power. In determining on the 
necessity and propriety of the writ, it must be observed: (1) 
Mandamus is proper only where a party has a legal right, and 
there is no other lawful remedy: * * * (2) The right must be 

certain and clearly made out by the facts of the case.” 

He then quoted with approval from Durham v. Monumental S. & M. 
Co., 9 Or., 44, where that court held: 

“The law provides that the writ shall not be issued in any case 


53 


Avliere there is a plain, speedy and ade(]nate remedy at law. The 
existence or non-existence of an adequate and specific remedy at 
law nnder the ordinary forms of lej>al procedure is therefore one 
of the first questions to be determined in all api)lications for the 
writ of mandamns, and wherever it is found that such remedy 
exists, and that it is open to the party aggrieved, the courts uni¬ 
formly refused to interfere by the exercise of their extraordinary 
jurisdiction.” 

This statutory and universal rule was specially called to Judge Jen¬ 
nings' attention in the case of Sulzer v. The Canvassing Board, but he 
refused to follow or apply it, saying: 

^The third point raised by Mr. Rustgard is that mandamus will 
not lie because there is a remedy by contest before the House of 
Representatives. This contention fails to appreciate the true ob¬ 
ject and purpose of the action. The object of this proceeding is to 
obtain the certificate of election—that is, prima facie evidence. 
It is not to put one man out and put the plaintiff in. A mandamus 
will not lie for such purposes as that, for that is for the House fo 
Representatives to determine; but no other process or proceeding 
can give the specific relief which plaintiff claims to be entitled to 
here.” 

Now, Judge Jennings admits that mandamus is not the proper rem¬ 
edy ‘To put one man out and put the plaintiff in,” but that is eactly 
what he did in the Sulzer case. He declared his only object was to 
throw out and reject the i-eturns from precincts and thereby to give 
Sulzer the certificate of election I And that is what he did, thereby 
putting “one man out and put the plaintiff in.” That is exactly what 
the certificate of election does. It is not merely ''prima facie evidence,” 
as he called it, but it is the commission—the insignia of the office, 
armed with which Sulzer came to Washington, i)resented it to the 
House of Representatives and was sworn in and took his seat as Dele¬ 
gate as a matter'of law and right. It was the title to the office and 
gave Sulzer the possession thereof wiMiout question. It was much more 
than facie evidence"—it Avas the commission, the title to the 

office itself. With it he was the officer, Avithout it contestant is a pri- 
Amte citizen. 

No member of the House of RepresentatiAes can be misled by such 
sophistry as that in Judge Jennings’ argument. If that is the laAv, 
it follows that any State court may at the suit of any defeated candi¬ 
date for Congress, Avho brings a suit against the Canvassing Board, 
compel the Board, by rejecting returns enough, to issue the certificate 
of election to one whom the people did not elect, whom the Canvassing 
Board found AAvas not elected by the ballots, and thereby force the 
elected candidate to carry on a long and expensive contest before the 


54 


House to rep,’aiii, if he can, wliat lie had the ri^ht to in the first instance, 
the commission and office represented thereby. No such case can be 
found in American jnrisiirndence except that so decided by the partisan 
Alaskan judge. 

Jtnt Congress has jirovided ‘‘a plain, speedy, and adequate remedy 
in the ordinary course of law'’ for a defeated candidate for Congress 
who wishes to gain the office if he thinks he has been unlawfully de¬ 
feated. That remedy is found in those statutes passed by Congress 
in Chapter 8 of the C. S. Revised Statutes, 1878, and acts amendatory 
thereof. 

Section 105 of that chapter ])rovides: 

“Sec. 105. Whenever any person intends to contest an election 
of any member of the House of Representatives of the Ignited 
States, he shall, within thirty days after the result of such election 
shall have been determined by the officer or board of canvassers 
authorized by law to determine the same, give notice, in writing 
to the member whose seat he designs to contest, of his intention 
to contest the same, and in such notice shall specify particularly 
the grounds upon which he relies in the contest.” 

The other sections following 105 jirovide a plain, speedy, and ade¬ 
quate remedy in the ordinary course of the law. Such statutory rem¬ 
edy was provided by Congress, and is exclusive, as the courts have uni¬ 
formly held. Assuming that Chapter 8 of the U. S. Rev. Stat., 1878, 
is a ])lain, speedy, and adequate remedy, it follows that the district 
court in Alaska had no jurisdiction in mandamus. If that court had 
such jurisdiction, it follows that a similarly constituted State court 
would have, but the Supreme Court of the Ignited States, in In re 
Loney, 134 T". S., 372, has held to the contrary: 

“The courts of a State have no jurisdiction of a comidaint for 
perjury in testifying before a notary ])ublic of .the State upon a 
contested election of a member of the House of Representatives of 
the United States ; and a person arrested by order of a magistrate 
of the State on such a complaint will be discharged by writ of 
iiabeas corpus.” 

See also New York v. Eno, 155 IT. S., 89 (97). 

The reason why the State courts have no jurisdiction of a complaint 
or indictment for i)erjury in a case of Congressional contested election 
is that such courts have no jurisdiction to try the case—there is an¬ 
other forum provided for such trials, to-wit, a contest before the House 
of Representatives itself. Not even a United States court has jurisdic¬ 
tion to try such a case: tbe Constitution, Art. I, Sec. 5, provides that 
^^each House shall be the judge of the elections, returns, and quali¬ 
fications of its own members.” 


55 


(10) IVHAT jri)GE JENNINGS DECIDED, AND WHY! 

In his long opinion in the cnse of Siilzer v. The (hinvassing Board, 
Judge Jennings pretended to consider, and did decide only two vital or 
important points, viz.: (1) The validity of the retnrii from Vault 
precinct, and (2) the validity of the several returns from the precincts 
of Chogginng, Nnshagak, Etica, Deering and Bonnitield. The return 
from ^ ault was ordered to be rejected for one alleged defect, and the 
several returns from the other five j)recincts for another and different 
sup})osed defect common to the five. 

POINT NO. l -VAELT PRE(JN(^T REJEf^TED. 

Probably nothing in this record shows the utter want of efficiency 
and fairness of the judge as clearly as his action in regard to the Vault 
precinct returns. Certainly nothing can more clearly demonstrate 
the danger of allowing a narrow-minded political judge to mutilate 
the record and control tlie action of competent canvassing officers than 
what follows. Judge Jennings makes the following statement of 
alleged facts in his opinion in the Canvassing Board case (italics 
mine) : 

^A^AULT. 

^‘As to the precinct of Vault, the allegation of the petition is 
that fiio certificate of the result of the election in said precinct 
specifying the number of votes cast for each candidate accompanied 
or was included in said returns.’ It is admitted in the answer of 
the Canvassing Board that the judges did not sign any such cer¬ 
tificate, but it is further alleged that The canvassing board received 
from the Clerk of the United States District Court for the Fourth 
Judicial Division in which said precinct is located, the “certificate 
of clerk to election returns,” bearing the names of the election 
judges for said voting jjrecinct and duly certified by the clerk of 
the court as a full, true and correct coi)y of the original on file 
in his office.’” 

Upon this incorrect assumption of fact the Court then declared 
(italics mine) : 

ivill he seen that the said tiro mcnihcrs of the Canvassing 
Board say in substance Ihat they received no returns from the 
election hoard and proceeded to canvass a certified copy of some 
certificate made hy the cleric of the election. If they did, then 
what they canvassed was not properly authentciated. It is not the 
clerk who is to sign the certificate of election—it is the election 
board; consequently the certificate of the clerk of the election to 
the Clerk of the Court is not the certificate required by law.” 

He then quotes some law to sustain his possition and concludes: 

“The returns from Vault, then, not being authenticated by the 


56 


proper officers, cannot be canvassed. Vault totals Wickersliain 
Snlzer 2.” 

Whereupon he peremptorily ordered the Canvassing Board to reject 
These retnriis and disfranchise the voters of Vault ])recinct. 

Sections 11 and 12 of the Act of ('ongress of May 7, 1906, providing 
for the election of a Delegate from Alaska contain the ])rovisions which 
govern the matter in (piestion. 

Section 11 provides that immediately after the close of the election 
the ])recinct election board shall canvass the vote and "theij shall tliere^ 
uf,on, under their hands and seals, make out in dnplieate a eertifieate 
of the result of said eleetion, speeififing the numher of rotes, in words 
and figures, east for eaeh eandidatef’ and shall send one copy to the 
Governor and the other to the Clerk of the District Court, in the 
Division where the precinct is situated. 

Section 12 then provides that the canvassing board shall ^^canvass 
and compile in writing the vote specified in the certificates of election 
returned to the Governor from all the several precincts as aforesaid.’’ 
*■ * * In ease it shall appear to said hoard that no election return 

as hereinhefore prescribed has been received by the Governor from any 
precinct in which an election has been held, the said board may accept 
in j)lace thereof the certified copy of the certificate of election for such 
precinct received from the clerk of the court, and may canvass and com¬ 
pile the same with the other election returns.” 

And all that was done in exact compliance with law for Vault pre¬ 
cinct, by the Canvassing Board. When the Board received the first 
copy of the Vault returns it Avas seen that the election board at Vault 
had failed to sign their names to the certificate of result. 

So the Governor, under the provisions of section 12 last above 
quoted, telegTa])hed to the Clerk of the Court at Fairbanks. Alaska, for 
a certified copy of the duplicate certificate filed with the Clerk of the 
Court there, under the law. The clerk of the court at Fairbanks, for- 
Avarded a ''certified eopy of the certificate of election” so held by him 
by duplicate copy, to the Governor and it Avas ])roj)erly used by the 
Board in the canvass and comjulation of the return from Vault pre¬ 
cinct. In short, in j)lace of the original defective return the board used^ 
canvassed and compiled ‘Ghe certified copy of the certificate of election 
for such precinct received from the Clerk of the Court” at Fairbanks, 
Alaska. 

And in the AnsAver of Governor Strong and Surveyor General Da¬ 
vidson, they alleged in explanation of the charge that the returns from 
Vault AA’ere defective (italics mine) : 

‘‘That in the canvass of the returns from the A^oting precincts 


57 


named in the alternative writ of mandamus herein, and in the 
petition filed in this cause, the following irregularities were found 
in the returns from the respective precincts: * * * Vault, in 

the case of ^^ault voting precinct, the election judges did not sign 
the certificate of result form in the back of the Election Register 
and Tally Book, hat the canvassing hoard received from the clerk 
of the United states District Court for the Fourth Judicial Divi¬ 
sion, in which said precinct is located, the "certificate of the clerk 
to election returns/ hearing the naiiies of the election judges for 
said voting precinct, and duly certified hy the clerk of the court 
as a full, true, and correct copy of the original on file in his office.’’ 

Judge Jennings assumed (or pretended to) that the foregoing alle¬ 
gation had reference to ‘‘some certificate made by the clerk of the 
election,” and on that hypothesis declared “it is not the clerk who is 
to sign the certificate of election,” etc. But that was neither the 
allegation in the answer nor the fact. There was no certificate from 
any clerk of election before him or the canvassing board, either. He 
did not ‘‘stop, and look, and listen.” It is possible he was misled by 
the use of the phrase that the canvassing board had received from the 
clerk of the court “the certificate of the clerk to election returns,” 
bearing the names of the election judges for said voting precinct, and 
duly certified by the clerk of the court,” &c. But that allegation made 
no mention of any “clerk of election” and was not meant to. 

As a matter of truth and fact ichat the Board in its Answer correctly 
descrihed. was the document then hefore the Canvassing Board and 
mentioned in section 12 of the Act of Congress ^lay 7, 1906, as ^'the 
certified copy of the certificate of election for such precinct received 
from the clerk of the court,” at Fairhanks, Alaska, and not any cer¬ 
tificate signed hy a clerk of election.” 

Here is a copy of the document so far as it covers the vote for Dele¬ 
gate under the certificate of both the Clerk of the Court and the Gov¬ 
ernor and ex-officio Chairman of the Canvassing Board, and it only 
needs a moments inspection and comparison with the statutory re¬ 
quirement to see that it was and is “the certified copy of the certificate 
of election for such precinct received from the clerk of the court,” and 
that it was properly canvassed and compiled by the Board, as by law 
required. 

“CERTIFICATE OF CLERK TO ELECTIOX RETURNS. 

United States of America, 

Territory of Alaska, > ss. 

Fourth Division. J 

We, the undersigned, hereby certify that the following is a true 
and correct certificate of the result of the November, 1916, elec- 


58 


tioii for ‘Delegate to Congress,’ ‘Attorney General for Alaska/ 
‘Members of the Legislature of the Territory of Alaska/ ‘Load 
Commissioner,’ and ‘For or against a general eight-hour law,’ and 
‘Against or in favor of the manufacture or sale of intoxicating 
liquors in Alaska after January 1, 1018,’ held in the Vault Voting 
Precinct of the Fairbanks Kecording District, Fourth Division, 
Territory of Alaska. 

Of which for Delegate to Congress— 


1. Lena Alorrow Lewis 

received 

three 

(3) 

Name of Candidate 


AA" ords 

Figures 

2. Charles A. Sulzer 

received 

two 


Name of Candidate 


AA^ords 

Figures 

3. James AATckersham 

received 

eight 

(8) 

Name of Candidate 

* 4e- •» 

* * 

AA^ords 

* 

Figures 

* 


Dated at Vault, this 7th day of November, 1010. 

James AVilson, 

Nettie VanBerlo, 
V"|lliam AViley. 

Election Board.” 


United States of A^^ierica. 
Territory of Alaska, 
Fourth Division. 


} 


ss. 


‘T, the undersigned Clerk of the District Court for the Territory 
of Alaska, Fourth Division, do hereby certify that the above and 
foregoing is a full, true and correct copy of the original corticate 
of results of the November 7th, 101(>, election for ‘Delegate to Con¬ 
gress,’ ‘Attorney General of Alaska,’ ‘Members of the Legislature 
of the Territory of Alaska,’ and ‘Road Commissioner,’ and ‘For 
or Against a General Eight-Hour Law,’ and ‘Against or in Favor 
of the Sale of Intoxicating Liquors in Alaska after January 1, 
1918,’ of the ALVULT A^oting Precinct of the Fairbanks Recording 
District, as the same appears on file and of record in my office. 

In Testimony AVhereof, I have subscribed my name and affixed 
the seal of the said Court at Fairbanks, Alaska, this 11th day of 
November, 1916. 

(seal.) J. E. Clark, Clerk. 

., Deputy.” 

“Territory of Alaska, 

Governors Office^ 

Juneau. 


L'nited States of A:merica, I ss. 

Territory of Alaska. \ 

I, J. F. A. Strong, Governor of the Territory of Alaska, and 
Chariman of the Territorial Canvassing Board, hereby certify that 
the foregoing document, consisting of three (3) pages, is a full, 
true and correct copy of the ‘CERTIFICATE OF CLERK TO 



59 


ELECTION RETUKNS,’ as received from the Clerk of the Dis¬ 
trict Court at Fairbanks, Alaska, and on file in the office of the 
Governor of the Territory, with the returns received from the 
election board of the Vault Voting Precinct of the Fairbanks Re¬ 
cording District, Fourth Division of Alaska, covering the election 
held in said Vault Voting Precinct on the 7th day of November, 
191G, for Delegate to Congress and for other purposes. 

In Testimony Whereof, I have hereunto subscribed my name this 
29th day of March, A. D. 1917, at Juneau, the Capital of Alaska, 
and caused the seal of the Territory to be affixed hereto. 

J. F. A. Strong^ 

Governor of Alaska, and Chairman of 
(seal.) Territorial Canvassing Board. 

Attest: 

Charles E. Davidson, 

Ex-officio Secretary of Alaska.’^ 

It may be this document was not as accurately described in the An¬ 
swer as if the Canvassing Board had been able to have the services of 
an attorney, but if Judge Jennings had examined it and compared it 
with the United States statute as he should have done and would have 
done if he had been intent on doing justice, he would not have made 
such a glaring and stupid error. The Canvassing Board understood 
and correctly canvassed and compiled ‘^the certied copy of the cer¬ 
tificate of election for such precinct received from the clerk of the 
court,” but Judge Jennings stupidly rejected it, though it was in the 
exact form required by the statute, and thus disfranchised the electors 
in Vault precinct and injured this contestant, because he was too parti¬ 
san and unjust to look and see what the document he denounced really 
was. 

POINT NO. 2—FIVE OTHER PRECINCTS REJECTED. 

The judge compelled the Canvassing Board to reject the entire re¬ 
turns from Choggiung, Nushagak, Utica, Deering and Bonnifield pre¬ 
cincts because the voters there used the Congressional form of ballot, 
and the election officers did not send a certificate stating the reason 
why they so used them. There was no fraud alleged, no wrongdoing- 
on the part of either the voters or the election officers—ji^^t the want 
of a certificate of explanation, and that certificate was not required by 
the law of Congress which governs the election. 

Section 9 of the Act of Congress of May 7, 1900, ^^An Act providing 
for the election of a Delegate to the House of Representatives from 
the Territory of Alaska.” 34 Stat. L., 169 (172), provides (italics 

mine) : 

‘^Sec. 9. * * * The voting at said election shall lely printed 


60 


or ivritten IxiUot. The ballot at said first election shall be sub¬ 
stantially in the following form : 

For Delegate from Alaska. 

For the short term (here insert the name of the person voted for.) 
For the long term (here insert the name of the person voted for.) 
At all elections after said first election the ballot shall be sub- 
stantialhj in the following form: 

For Delegate from Alaska. 

{Here insert the name of the person voted for.)'- 

Under that law the electors in Alaska cast their ballots from 1906 
to 1916, and they were heretofore always honestly counted, canvassed 
and compiled. 

But the Alaska Legislature concluded to amend that Act of Congress, 
and it did so by the Act of April 27, 1915, entitled “An Act to provide 
official ballots for elections in the Territory of Alaska.” Sess. Laws of 
Alaska, 1915, pp. 55-66, This territorial law provided for the printing 
of an official Territorial ballot and for using them at all elections for 
all candidates including those for Delegate to Congress and Members 
of the Legislature. While this Act provided for printing and using 
an official territorial ballot, it also recognized the necessit}’ for, and 
the validity of, the Congressional ballot provided in the Act of Con¬ 
gress of ]May 7, 1996. 

Section 21 of the Legislative Act provides (italics mine) : 

“Sec. 21. That in any precinct where the election has been 
legally called and no official ballots have been received, the voters 
are ijermitted to twite or print their ballots, but the judges of 
election shall in this event certify to the facts Avhich prevented the 
use of the official ballots, which certicate must accompany and be 
made a part of the election returns.” 

And the voters in Choggiung, Nushagak, I^tica, Deering, and Bon- 
nifield precincts wrote or printed their own ballots, or in some cases 
used sample ballots or those printed and sent to them by Mr. Sulzer, 
and the judges of election in those precincts did not certify to the facts 
which prevented the use of the Territorial form of ballots in time so 
the certificates could-“accompany and be made a part of the election 
returns.” And for that reason, and that only, the judge held the 
returns fatally defective and ordered them to be rejected by the Can¬ 
vassing Board. On the total vote this contestant had a majority of 31 
votes over Sulzer; in these 5 precincts contestant had 60 votes and 
Sulzer 17, my majority being 43 votes. All being rejected gave Sulzer 
a majority of 12 votes and the election! 

In issuing his mandate against the Governor and other members of 


61 


the Canvassing Board to compel them to reject the entire returns from 
these five precincts, Judge Jennings assumed the Act of the Legislature 
of 1015 was valid and that the Legislature had authority to alter, 
amend, modify and repeal the Congressional election laws of 1906 and 
1912. 

But that assumption is not correct, for Congress, in sections 5 and 17 
of the Act of Congress of August 24, 1912, specially limited the power 
of the Legislature of Alaska in that regard. The Act mentioned is 
one of the fundamental laws of Alaska; it is the Organic Act ^To 
create a Legislative Assembly in the Territory of Alaska, to confer 
legislative power thereon, and for other purposes,” 37 Stat. L., 512. 

Section 5 of that Act provides (italics mine) : 

^‘Sec. 5 * * * * fiiQf f]i0 qualifications of electors, the regu¬ 

lations governing the creation of voting precincts, the appointment 
and qualifications of election officers, the supervision of elections, 
the giving of notices thereof, the form of ballots, the register of 
votes, the challenging of voters, and the returns and the canvass 
of the returns of the result of all such elections for members of the 
legislature shall be the same as those prescribed in the Act of Con¬ 
gress cniitled "An Act providing for the election of a Delegate to 
the House of Representatives from the Territory of Alaska’ ap¬ 
proved Hay seventh, nineteen hundred and six, and all the pro¬ 
visions of said Act ivhlch are applicable are extended to said elec¬ 
tions for members of the legislature, and shall govern the same, 
and the canvassing board created by said Act shall canvass the 
returns of such elections and issue certificates of eleetions to each 
member of the said legislature etc. 

Section 17 of the Act of August 12, 1912, aforesaid, again referring 
to the Act of May 7, 1906, provides: 

'^Sec. 17. Election of Delegate. * * * and all of the provi¬ 

sions of the aforesaid Act shall continue to be in full force and 
effect and shall apply to the said election in every respect as is 
now provided for the election io be held in the month of August 
therein: Provided, That the time for holding an election in said 
Territory for Delegate in Alaska to the House of Representatives 
to fill a vacancy, whether such vacancy is caused by a failure to 
elect at the time j)rescribed by law, or by the death, resignation, or 
incapacity of a person elected, may be prescribed by an act passed 
by the Legislature of the Territory of Alaska; Provided fiuthe't . 
That tchen such election is held it shall be governed in every re¬ 
spect by the laws passed by Congress governing such election,” 

The Supreme Court of the United States has held that the Reports 
prepared by Committees of Congress having the duty of examining and 


62 


reporting bills referred to them for that purpose may be consulted as 
an aid to ascertaining the motive of Congress in passing a statute. 

McLean v. United States, 226 U. S., 374. 

The Act of August 24, 1912, was H. IL, 38, in the r)2d Congress, 2d 
Session, and in tlie CoiUerence Report, H. Kept., 1212, is this state¬ 
ment signed by the managers on the part of the House: 

^‘Amendment No. 67 is a new section changing the date of the 
election for Delegate to Congress from Alaska from the month of 

August so that it shall be held on the Tuesday next after the first 
Monday in November in 1914, and every two years thereafter, so 
that the Delegate election and that for memhers of the Legislature 
may then and thereafter he held at the same time under the same 
law passed hy Congress.” 

There is no doubt about the intention of Congress in inserting sec¬ 
tions 5 and 7 in the Act creating the Alaska Legislature. The purpose 
was to preserve the United States Election Law of May 7, 1906, for 
the election of Delegate from Alaska, and to extend its provisions to 
the election of members of the Legislature. The Act of 1912 was an 
Organic Act, for the creation of the Legislature with power '‘to alter, 
amend, modify, and repeal” certain laws theretofore passed by Congress 
establishing civil and criminal codes in the Territory. To prevent the 
Legislature from having power to "alter, amend, modify, and repeal” 
the election laws the provisions of section 5 and 17 were inserted and 
made to cover every head found in the Act of May 7, 1906, relating to 
elections. 

It is, then, unnecessary to examine into the minute details of the 
court’s opinion in the suit of Sulzer v. The Canvassing Board, in its 
relation to the Act of the Territorial Legislature, "An Act to pro¬ 
vide official ballots for elections in the Territory of Alaska.” Sess. 
Laws of Alaska, 1915, pp. 55-66, because the Act is void, in so far as 
it attempts to "alter, amend, modify or repeal” the Congressional elec¬ 
tion laws for the election of Delegate to Congress and members of the 
Legislature, being in direct conflict with the Act of Congress creating the 
Alaska legislature. A legislature cannot alter, amend, modify and 
repeal the Constitution, or the Organic Act creating it, and especially 
where it is expressly forbidden to do so in the Constitution or Organic 
Act itself. 

And with respect to the defect upon which Judge Jennings rejected 
Utica and Deering precincts in the Nome division, the Governor and 
Surveyor General, a majority of the Canvassing Board, in their An¬ 
swer, alleged the receipt by the Board of a telegram from the Clerk 


63 


of the Court at Nome, saying he had then in his office the certificate of 
the judges of election ol T tica and Deering precincts explaining why 
the Territorial or so-called official ballots had not been used in those 
precincts, and same was being forwarded. Plere is a duly certfiied 
copy of that document, under the hands and seals of the Clerk of the 
Court, and the Governor and Surveyor General of Alaska: 

^^G. A. Adams, Clerk, 

DEPARTMENT OF JESTICE. 

Office of 

Clerk of the District Court, 
for the 

Second Division, District of Alaska. 

Nome, Alaska. 

February 12, 1917. 

J. F. A. Strong, Governor, 

Chairman, Canvassing Board, 

Juneau, Alaska. 

Sir: 

I have the honor to forward herewith a certified coi)y of affidavit 
of John Petrich and certificate of Alfred S. Kepner, Judges of 
Election, Deering noting precinct, and a certificate of the Judges 
of election of the lAica Voting Precinct, Second Division, in the 
matter of using special ballots at the General 1916 Election in their 
respective precincts. 

Advisory telegram sent you this day. 

Yours veiw truly, 

G. A. Adams. Cleric.’’ 

^^United States of A^i erica, ] ss. 

Territory of Alaska. \ 

I, John Petrich, lieing duly sworn, upon oath depose and say, 
that I am one of the Judges of Election of the Deering Voting 
Precinct, Territory of Alaska, for the Election of Nov. 7th, 1916; 

That the Election Papers used at that Election were all made 
by the judges for the reason that the regular official Ballots did 
not arrive in Deering in time for said Election, and I am informed 
that they did not arrive for about two weeks thereafter. 

John Petrich. 

Subscribed and sworn to before me this 2nd day of Feb., 1917. 

Alfred S. Kepner, 

(seal.) Notary Piihlic for the District of Alaska. 

My Commission expires May 12, 1918. 

I hereby certify that I was a Judge of Election at Deering on 


64 


Xov. 7tli, 1916, and liave read the above affidavit, and the facts 
therein are true. 

Alfred S. Kepxer. 

Endorsed: 

Filed in tlie Office of the Clerk of the District Court of Alaska^ 
Second Division, at Nome, Feb. 12, 1917. 

G. A. Adams, Cleik. 

By ., Deputy.” 

‘‘We, the nndBrsii>ned Judges of Election, held the 7th of Nov., 
1916, at the Utica Voting ])recinct, in the Fairhaven Recording 
district, hereby certify that at the time of said election there had 
been no ballots received, and ^Ir. Kepner of Deering had the form 
of ballots telephoned from Candle and repeated it to the Utica 
and we wrote the ballots, using the form as we received it. 

James W. Black, 

F. G. Henry, 

J. A. Chidester.’^ 

“United States of America, [ ss. 

District of Alaska. \ 

On this ISth day of January, A. D. One Thousand Nine Hundred 
Seventeen, personally came before me, Thomas V. Roust, a Notary 
Public in and for said District, the within-named James W. Black, 
F. G. Henry, J. A. Chidester, to me personally known to be the 
identical persons described within and who executed the within 
instrument, and acknowledged to me that they executed the same 
freely, for the uses and purjioses therein mentioned. 

Witness my hand and seal this 18th day of January, 1917. 

Thomas P. Roust, 

(seal.) Xotary Piihlic in and for the District of Alaska. 

My Commission expires Sept. 9, 1917. 

Endorsed: 

Filed in the Office of the ( Jerk of the District Court of Alaska, 
Second Division, at Nome. Feb. 12, 1917. 

G. A. Adams, Clerk. 

By ., Deputy.” 

“United States of A:merica, 1 
District of Alaska, 

Second Division. J 

I, G. A. Adams, Clerk of the District Court, for the District 
of Alaska, Second Division, do hereby eertify that I have com¬ 
pared the foregoing copy with the original Affidavit and Certificate 
of Judges of Election, Deering and Utica Voting Precincts, cov¬ 
ering the matter of using special ballots at General 1916 Election, 
now on file and of record in my office at Nome, in the District of 




65 


Alaska, and the same is a true and perfect transcript of said orig¬ 
inal and of the whole thereof. 

Witness my hand and the seal of said Court tliis 12th day of 
February, A. 1). 1917. 

(SEAL OF COURT.) G. A. Adams, Clerk. 

By W. C. McGuire, Deputy. 

Endorsed: 

In the District Court for the District of Alaska, Second Division. 
Certified copy of certificate and aftidavit of Judges of Election, 
Deering and TAica ^"oting Precincts, covering the matter of using 
special ballots at General 1916 Election.” 

^^TERRITORY OF ALASKA, 

Governors Office, 

J iineau. 

United States of A:\ierica, \ ss. 

Territory of Alaska. j 

I, J. F. A. Strong, Governor of the Territor}" of Alaska, and 
Chairman of the Territorial Canvassing Board, hereby certify that 
the foregoing is a full, true and correct copy of the original letter 
of transmittal dated February 12, 1917, signed by G. A. Adams. 
Clerk of the District Court, Second Division, Nome, Alaska, and 
of the certified copy of Affidavit of John Petrich and certificate of 
Alfred S. Kepner, Judges of Election, Deering Voting Precinet, 
and certificate of the Judges of Election of the Utica Voting Pre¬ 
cinct, Second Division, Alaska, in the matter of using special 
ballots in the General 1916 Election in the precincts named. 

T further certify that the original of said letter, with the certi¬ 
fied copies of the documents therein referred to, as above enu¬ 
merated, was received at the Governor’s office on the 4th day of 
Ai>ril, 1917, and that the same is now on file in said office, with 
the election returns of the General 1916 Election. 

Witness my hand and the seal of the Territory of Alaska this 
4th day of April, A. D. 1917. 

J. F. A. Strong, 

(seal.) Governor of Alaska. Chairman of 

Territorial Canvassing Board. 

Attest: 

Charles E. Davidson, 

Ex-officio Secretary of Alaska.” 

No certificate was received from either Choggiung or Nushagak, but 
the reason was well known to the Board of Canvassers and to Judge 
Jennings. The fact was the Territorial or so-called official ballots 
were not received at either Choggiung or Nushagak before the election, 
though they were duly forwarded in the United States mail in time to 
be there before election day, but the mails were not carried there after 


66 


their deposit in the post office by the Clerk of the Court at Valdez^ 
Alaska. The following copy of an official statement from the Post 
Office Department shows why they were not so received by tlie election 
officers befoi'e the election : 

OFFICE DEPAKTMEXT. 

Second Assistant Postmaster General. 

Washington, April 7, 1917. 

Hox. James Wickersham, 

House of Representatives. 

My dear ]Mr. Wickersham : 

Referring to your personal inquiry today, I have the honor to 
inform yon that the mail service authorized for Nnshagak, Dilling¬ 
ham, and other points on Bristol Bay, Alaska, consists of one 
round trip a month from May 1 to August J1 on steamboat route 
Xo. 78070, Seward to Nushagak, and three round trips between 
November 1, 1916, and March 81, 1917, by carrier on emergency 
route Xo. 7828.5, Dillingham by Xushagak and Xaknek to Cold 
Bay (u.o.). 

The last trip by boat of the season of 1916 on route Xo. 78070 
arrived at Xushagak August 31, 1916. There was no further 
service authorized until the beginning of the winter period No¬ 
vember 1st. The carrier under that authorization left Dillingham 
• on his first trip December 1, 1916, and departed from Cold Bay 
(n.o.) January 8, 1917, without carrying any mail, because of 
the fact that the mail steamer on the route between Seward and 
Unalaska was unable owing to weather conditions to effect a land¬ 
ing at Cold Bay (n.o.). According to reports, the first mail de¬ 
livered on the route during the winter season of 1916-17 reached 
Dillingham February 8, 1917. 

It is very difficult for the mail steamer to make a .landing at 
Cold Bay (n.o.), and it appears that the consequent irregular 
service on the connecting route from Dillingham to Cold Bay 
(n.o.) cannot be avoided. 

Very truly yours, 

Otto Praeger, 

Second Assistant Postmaster General^ 
The further fact is that these precincts are so isolated during the 
winter months that no corticate has yet been received—and none is 
necessary. 

Judge elennings knew all the foregoing facts in explanation when 
he ordered the returns from those precincts rejected for the want of 
a certificate of explanation. 

(11) THIRTY SEVEN NON-RESIDENT SOLDIERS VOTED FOR 

SULZER. 

The record shows, without any reasonable doubt, that 33 enlisted 


67 


men in the Lnited States Army posted at Fort Gibbon precinct. 
Alaska, and 4 posted at Fort Egbert, Eagle precinct, Alaska, voted for 
Siilzer at said election. These 37 votes were returned, canvassed, com¬ 
piled and counted for Sulzer, and ought therefore, to be subtracted 
from his total vote. 

Section 3 of the Act of Congress entitled “An Act providing for the 
election of a Delegate to the House of Representatives from the Ter¬ 
ritory of Alaska,” approved May 7, 1906, 34 Stat. L., 169, provides the 
qualifications of electors at such election as follows (italics mine) : 

^^Sec. 3. That all male citizens of the United States twenty-one 
years of age and over who are actual and hona fide residents of 
Alaska, and tcho have keen such residents continuously during the 
entire year immediately preceding the election, and who have been 
such residents continuously for thirty days next preceding the 
election in the precinct in which they vote, shall he qualified to 
vote for the election of a Delegate from Alaska.” 

The record in this case shows that all the said 37 enlisted men were 
so enlisted in some of the States, and came into Alaska as soldiers in 
the Army. True, 8 of those at Fort Gibbon are shown to have enlisted 
in Alaska, but they were discharged one day and re-enlisted the next day, 
and there was, therefore, no space of time when they were not regu¬ 
larly enlisted men in the Army. The sole question is: Can an enlisted 
man in the regular Army coming into Alaska, and then constantly 
under orders from his superior officers, acquire the status of an elector? 
Can non-resident enlisted men in the regular Army who have been 
stationed at a military post or in government service for more than a 
year in Alaska vote? 

Certainly not. and the reason is, they are not ^'actual and hona fide 
residents of Alaska, and who have been such residents continuously 
during the entire year immediately preceding the election.” 

The authorities defining the meaning of the word “resident,” leave 
no doubt on tliat inquiry. The Supreme Court of the United States 
in the case of Penfield v. Chesapeake R. R. Co., 134 T^. S., 531, has 
gathered the authorities to its satsifaction. Referring to the case of 
Frost V. Brisbin, 19 Wend., 11, 14, the court in the Penfield case says 
(p. 357): 

''The court, speaking by Chief Justice Nelson, said that if the 
case turned upon the defendants formed intention and purpose of 
mind, and not upon the fact of actual residence, the law was for 
him. But upon a review of former decisions, construing statutes 
regulating the rights and remedies of creditor and debtor, he 

said: . i. 

‘The cases cited above establish that the transient visit of a 


68 


person for a time at a place does not make him a resident while 
. there; that something more is necessary to entitle him to that 
character. There must he a settled, fixed abode, an intention to 
remain permanently at least for a time for business or other 
purposes, to constitute a residence Avithin the legal meaning of 
that term.’ ” 

There are Iwo elements which must conciii' in making one a '^resi 
dent, (1) the fact of actual residence, and (2) the intention to reside 
there. On this latter element the court said in the Penfield case (p. 
357-S) : 

“After observing that upon the facts it must be assumed that the 
defendant commenced an actual and permanent residence in Mil- 
Avaukee in the spring of hut that since that date he had 

resoh^ed to close his business there as soon as it could be con- 
A^eniently done, and return to his former residence, the court said: 

^Has this change of intention Avorked a change of i-esidence? 
for this is the most that can he pretended. If our exposition of 
the term in the statute is correct, it clearly did not. His' actual 
residence is still at ^lihA^aukee. He is still carrying on his 
business there, and may continue it for such time as he pleases 
Change of mind may lead to change of residence, but cannot 
Avith any propriety be deemed such itself.’ ” 

And again in Barney v. Oelrichs, 138 V. S., 529 (536). the Supreme 
Court approA^ed its former definition and concluded (italics mine) : 

“We hold that the residence out of the State aa hich operated to 
suspend the running of the statute under Section 100 as originally 
framed, teas a fixed abode entered upon with the intention to re¬ 
main permanently, at least for a time, for business or other pur¬ 
poses, and as there Avas no evidence tending to establish such a 
state of fact here, the judgment must reversed.” 

The Avord “resident” is thus defined in Am. & Eng. Ency. of Law, 
2nd Ed., Yol. 24, p. 694, and the authorities cited in its support:. 

“A resident of a place is one Avhose place of abode is there, and 
who has no present intention of removing therefrom.” 

The courts of Alaska liaA^e given the same meaning to the word and 
followed that given by the Sui)reme Court of the United States. In 
Terrill v. Terrill, 2 Alaska, 475 (478), the court said (italics mine) : 

“Residence means a place of abode and within the meaning of 
this statute it is the place where he resides. In Wisconsin, under 
the statute requiring that ‘the plaintiff shall have resided in this 
State one year immediately preceding the time of’ applying for a 
diA'Oice, the plaintiff must haA^e, in fact and in intent; an estab 
tished home in the State for the preceding year; a place AAdiere he 
lives and has an abode; where he would be liable to taxation; 


69 


\There service of process of court could be served upon him by 
copy; and where he has an actual habitation and residence. Hall 
V. Hall, 25 is., 600, 60S. In Illinois the statute provides that no 
person shall be entitled to a divorce who has not resided in the 
State one year, and the Supreme Court of that State held this 
meant that there must be a fixed abode there, and the intention of 
remaining, at least for a time, for business or other reasons not 
solely connected with the suit for divorce. Chapman v. Chapman, 
129 Ill., 386; 21 N. E., 806.” 

And the same Alaska court, in White s Guai dian v. Martin, 2 Alaska, 
495 (500), said; 

“One ‘resides’ in a place when he lives or dwells there; when it 
is his settled abode; his habitation; his home. There must be a 
settled, fixed abode, an intention to remain permanently, at least 
for a time, for business or other purposes, to constitute a ‘residence^ 
within the legal meaning of that term. Barney v. Oelrichs, 138 
IT. S., 529, 533; 11 Sup. Ct., 414; 34 L. Ed., 1037. There are two 
necessary elements in the definition: (1) the presence of the per¬ 
son in the place, and (2) the intention to live there.” 

The courts all agree that to constitute one a “resident” of a par¬ 
ticular place he must (1) be actually there, (2) with the intention of 
residing or remaining there. Am. & Eng. Ency. of Law, 2nd Ed., Vol. 
10, p. 598. There must be both the fact and the intent, to constitute one 
a resident. Hence enlisted men in the Army, avIio are ordered to 
some post in Alaska, and who are ordered away again by their superior 
officers, can not acquire any legal residence there Avhile in such service. 
True the}^ meet the first requirement by actual presence at the place, 
but they are there by the command of a superior officer, and move at 
his command and they can not have or exercise any intention of remain¬ 
ing while in such service uor until after their discharge from the Army. 
During that period they are temporary sojourners at or on a military 
reservation, liable to be removed at any moment by their commander. 
Their intention is not considered, and has no legal existence. 

In California it has been held: 

“Presence in the State more than six months and in the county 
more than thirty days, under orders as a soldier in the military 
service of the United States, does not by itself entitle a person to 
be registered as a voter. Mere presence as a soldier of the United 
States, in obedience to military orders, does not make a residence, 
in the sense of the Constitution and laws in relation to the elective 
francise.” Devlin v. Anderson, 38 Cal., 92. 

A man who has enlisted as a member of the ^larine Corps of the 
United States Navy acquires no residence in the election district 


70 


Avherein the marine barracks are located. In re Green, 5 Fed. Rep., 145 

In an early case in Congress, where there was no special provision 
against the right of soldiers to gain a residence, it was held that one 
did not gain the right to vote by being stationed at the place in a 
garrison. Biddle v. Wing, Cl. & H. El. Cas., 504. 

The well recognized ride of law * * * is this: That the fact that 
an elector is in the Arni}^ does not disqualify him from voting at his 
place of residence; but he cannot acquire a residence so as to qualify 
him as a voter by being stationed at a particular place while in the 
service of the United States. Wigginton v. Pacheco, 45th Cong., 1 Ells., 
12. See a Historical and Legal Digest of Contested Election Cases, 
Rowell, p. 819, 822. 

The legislature of Alaska, in the Act of 1915, attempted to provide 
a rule for the protection of Alaskan residents who enlist in the Army 
or Navy, or the Civil Service of the United States, and who are neces¬ 
sarily obliged to absent themselves from the Territory. That Act 
attempts to save the residence of such persons in the following clause 
in Section 22: 

‘^and provided further ^tJiat no person sJioll he deemed to have 
lost his resdience hy reason of his absence tvhile in the Civil or 
Military service of the Territory, or the United States.^’ 

That seems to be a general rule in all the States and former Ter¬ 
ritories, and is a sound reason why such men from other States are 
not to have the voting franchise in Alaska, for they have the right 
reserved to them in the place of their residence when they enlisted. 

Sections 1859 and 1800, U. S. Rev. Stat., 1878, fix the general quali¬ 
fications of electors in Territories. While these sections were enacted 
many years ago, and are therefor subject to the 3rd section of the Act 
of May 7, 1900, establishing the qualifications of voters in Alaska, 
yet the third sub-clause in Sec. 1800 prohibits the Legislature of 
Alaska, even if it might otherwise be thought to have authority, from 
permitting non-resident soldiers to vote. The sections authorize the 
legislature to prescribe the qualifications of voters in a Territory: 

^^subject, nevertheless, to the following restrictions on the power 

of the legislative assembly, namely: 

* * * ' * * * * 

‘Third, No officer, soldier, seaman, mariner or other person in 
the Army or Navy, or attached to troops in the service of the 
United States, shall be allowed to vote in any Territory, by reason 
of being on service therein, unless such Territory is. and has been 
for the period of six months, his permanent domicile.” 

Now, of course, the Legislature of Alaska has not attempted to ex- 


71 


tend the voting francliise to any sncli soldier, and could not if it did, for 
Congress reserved the power in Sec. 5 of the Act of Aug. 24. 1912, 
creating the Legislature to fix the qualifications of voters. But the 
foregoing is a statutory denial of the right of an.y such enlisted man 
to vote in a Territory, even if authorized hjj the Legislature, nntil six 
months after his discharge and the estahlishmnet of ^‘his permanent 
domicile” or home in the Territory. 

On the general question the Judge Advocate General of the Army 
has clearly established the correct rule of law. In “Digest of Opinions 
of the Judge Advocate General of the Army,” by Howland, 1912, at 
pages 970 et seq., that officer has established the rule of “residence” for 
officers and men in the Army: 

“In the case of an officer or enlisted man in the military estab 
lishment, held that his domicile during his continuance in the ser¬ 
vice is the domicile or residence which he had when he received 
his appointment as an officer or entered into an enlistment con¬ 
tract with the United States. This is true whether such domicile 
was original, i.e., established by nativity, or by residence with the 
requisite intention, or derivative, as that of a wife, minor, or 
dependent. This residence or domicile does not change while the 
officer remains in the military service, as his movements as an 
officer are due to militray orders; and his residence, so long as it 
results from the operation of such orders, is constrained, a form 
of residence which works no change in domicile.” Graham v. Com., 
51 Pa. St., 258; Wood v. Fitzgerald, 3 Ore., 568; G. O., 13, First 
Mil. Dist., 1868; Taylor v. Reading, 4 Brewst, 439; Devlin v. An¬ 
derson, 38 Cal., 92. ''Soldiers of the United States do not acquire 
or lose their residence hy reason of being stationed in the line of duty 
at any partieiilar place, no matter how long their occupancy of 
such place may continue.” Mead v. Carrol, 6 D. C., 338; People v, 
Holden, 28 Cal., 123; Hunt v. Richards, 4 Kans., 459; Brewer v. 
Linnaeus, 36 Maine, 428; Tibbetts v. Townsend, 15 Abb. Prac., 221. 

‘‘An officer who has resided elsewhere cannot make a certain place 
his residence by merely declaring that it is so, or that he has 
elected it to be such. He must take some definite action indicating 
an intention and an ability to permanently remain, such as provid¬ 
ing himself with a dwelling there, removing his family there, en¬ 
tering into business there, etc., to constitute the place designated 
his legal residence or domicile in law.” 

For the want, then, of any such residence as is required by Sec. 3 
of the Act of May 7, 1906, that these soldiers in Alaska were ''actual 
hona fide residents of Alaska, and who hare been such residents con¬ 
tinuously during the entire year immediately preceding the election/’ 


72 


they were not le«»al voters, and when they were challenged and made 
oath to their several qnalitlcations they coininitted perjury and ought 
to be punished as is provided by law. Not being ^‘actual bona tide 
residents of Alaska,” their votes cast for Sulzer should be subtracted 
from his total. 

Wherefore contestant api;eals to this Committee and to the House 
of Representatives to credit him in said canvass and compilation with 
the said sixty-nine votes so rejected from said canvass and compilation 
of the returns of the said election in Alaska, by the mandate of said 
court, and reject all votes cast by soldiers and other non-voters, and 
upon such correction of vote to declare that contestant received the 
greatest number of votes of any candidate for Delegate from Alaska 
at said election so held in said Territory of Alaska on said November 
7th, 1016, and to be duly elected Delegate from Alaska for the term 
beginning on March 4, 1017, and that Contestant be allowed in full all 
his expenses necessarily incurred in making this contest. 

Ja:MES WlCKERSHAM, 

Contestant, 



LIBRARY OF CONGRESS 



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